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What You Should Know

Comparative Negligence in Herniated Disc Cases

When determining the value of a personal injury case, a skilled trial lawyer looks at multiple factors that could affect the ultimate outcome of a jury trial. One such factor is what we refer to as “comparative negligence.” Florida courts recognize that more than one person or entity can be at fault for the same accident. When two or more people are at fault for the same accident, the law requires a jury to apportion the negligence between the at-fault parties. For instance, if a plaintiff is involved in an intersection collision where the defendant ran a stop sign, the defendant will often allege that the plaintiff had an opportunity to avoid the collision and is therefore partially at fault. If the case goes to a jury trial, the jury will have to decide what percentage of fault is attributable to the plaintiff, and what percentage is attributable to the defendant. After apportioning the fault among the parties, the jury then decides the amount of the plaintiff’s damages, without regard to the apportionment of fault. After the verdict comes out assessing the damages, the judge reduces the amount of damages due to the plaintiff by the percentage of fault that is attributable to the plaintiff. If the plaintiff’s damages, for instance, are assessed at $100,000 but the plaintiff is found 50% at fault, the judge will reduce the $100,000 verdict to a $50,000 judgment. The plaintiff will only get compensated for 50% of his or her total damages. A personal injury lawyer should know how to identify a comparative negligence argument, assess the likelihood of a comparative negligence verdict, and accurately determine the amount of fault that a jury is likely to attribute to the plaintiff. The attorney should also be prepared to debunk any comparative negligence defense with evidence of the reasonableness of the plaintiff’s actions contrasted to the carelessness of the defendant’s actions.

In my experience, comparative negligence verdicts are likely in cases where there is a reasonable argument that the plaintiff is at fault. To render a verdict in Florida, six jurors have to reach a unanimous verdict. It’s difficult to find six people to agree on anything, especially on issues that are hotly disputed. Therefore, jurors tend to compromise in the deliberations room, meaning they don’t usually side completely with the plaintiff or the defendant. They tend to “split the baby.” My law firm does a lot of mock trials, where we hire people from Craig’s List to come into the firm and sit as mock jurors on a case we are preparing to try. We present the case to them and watch them deliberate. It’s fascinating to see the process in which jurors negotiate to reach a verdict. If there is a single juror who is convinced that the plaintiff is at fault or could have avoided the injury, a comparative negligence verdict is likely.

However, in cases where the defendant is over-reaching, stretching the truth, or manufacturing an argument in favor of comparative negligence, the jury is likely to see through the defendant’s deception. For instance, in 2016, I tried rear-end collision case involving a herniated disc without surgery. The defendant rear ended my client and was clearly at fault. However, the defendant argued that my client stopped suddenly and without warning, causing the defendant to crash into her. The defendant admitted fault, but stated that my client was partially at fault for the crash. We presented evidence from the black box data of my client’s GMC Yukon Denali. The black box data showed that our client was going 5 miles per hour, 3 seconds before impact, and 3 miles an hour, 2 seconds before impact. Our expert biomechanical engineer testified that this was a normal rate of speed reduction and in no way indicates that my client slammed on her brakes. The jury found zero comparative negligence against my client and returned a verdict for $147,000.

In our study of 100 random selected herniated disc cases in Orlando, Florida, 9% of the case studies resulted in a verdict of comparative negligence. Of the 9 comparative negligence cases in our study, 66.67% of cases, or six out of nine, favored the plaintiff with a negligence percentage of 1% to 49%; on the other hand, 33.34%, or three out of nine, favored the defense with a negligence percentage of 50%-99%. The average percentage of negligence given to the plaintiff’s side was 37.45% and the average percentage of negligence given to the defendant’s side was 62.56%.

Juries are more likely to assess lower damages in cases where plaintiffs are found at fault, even though the damages are supposed to be determined separately from the percentage of fault. In our sample, four out of five verdicts with damages assessed at over $100,000 received less than a 25% comparative negligence assessment against the plaintiff. In contrast, four settlements that were under $100,000 received plaintiff’s comparative negligence verdicts of over 25%.

Why do some cases get larger comparative negligence percentages? Below are examples, taken from our study of 100 cases, of cases where the jury found the plaintiff partially at fault:

In Case #1, the plaintiff was in an accident in a rental car causing a herniated disc at C3-4 and a torn meniscus which required surgery. Because of his extensive injuries, the plaintiff became unemployed after losing his job of eighteen years. The jury returned a verdict of $325,800 accounting for lost earnings, medical expenditures, and pain and suffering; however, they found the plaintiff 15% negligent, thus reducing his award by 15%. This case involved an intersection collision, where the defendant ran a red light. The defendant argued that the plaintiff had enough time to avoid the collision.

Case #2 is a smaller case with a final settlement of $6,000, but trial verdict of $20,733. In this case, the jury assigned a 50%/50% comparative negligence percentage, meaning that the jury had found that both parties were equally liable for the parking lot collision in question. This case involved minimal property damage to both vehicles. The plaintiff suffered a lumbar herniation which required surgery. This case supports the argument that parking lot collisions often result in a comparative negligence verdict where both parties are found at fault. They also tend to result in small verdicts, due to low impact collisions involving minimal property damage. There are exceptions, but parking lot collisions are typically very difficult to win. This is an example of a situation where the jury decided to “split the baby.”

Case #3 involved a rear-end car collision with a herniation of L5-S1 with surgery. This case had minimal property damage, as in Case #2, and the jury found no permanent injury to the plaintiff. This resulted in a $10,132 verdict with a 35% comparative negligence percentage assigned to the plaintiff. The 35% was based upon the defendant’s argument that the plaintiff suddenly stopped. In Florida, the law presumes that the rear vehicle is at fault in a rear end collision. However, the legal presumption of fault can be overcome by a showing that the plaintiff stopped suddenly and without warning. The argument here is the same as the argument made by the defense attorney in the case I tried in 2016, described above. In this case, however, the plaintiff’s attorney did not present black box data or an accident reconstruction expert refuting the defendant’s allegation of the plaintiff’s fault.

In Case #4, a truck made a left turn causing a collision. The jury trial ended in a verdict assessing damages of $229,183, but there was a 25% comparative negligence percentage assigned to the plaintiff. The plaintiff suffered a cervical herniation requiring future surgery and a tear of the rotator cuff.

Case #5 involved a pedestrian being hit by a car, where the plaintiff was the pedestrian. The plaintiff suffered lumbar herniations with surgery and received $433,658, with $33,658 going to past medical bills and $400,000 going to pain and suffering. The plaintiff was found 20% at-fault for crossing in front of the defendant’s vehicle.

In Case #6, a box fell from a truck, causing injury to the plaintiff. The jury assessed the plaintiff’s damages at $100,000. The injuries included herniated discs at L4-5, C5-6, and C6-7 without surgery. The verdict assigned $3,000 for past medical bills, $72,000 for future medical bills, and $25,000 for pain and suffering. The plaintiff was found to be 25% negligent in this case. Apparently, the jury thought the plaintiff could have avoided the box falling on him if he had been paying closer attention.

Case #7 involved another car/pedestrian accident; however, in this case, the plaintiff was found 75% negligent, because the plaintiff was in the roadway in an area with no crosswalk. The jury determined that the plaintiff sustained $61,000 in damages. The plaintiff suffered from a lumbar herniation and had subsequent lumbar herniation surgery. This case was part of an uninsured motorist claim. The apportionment of 75% negligence to the plaintiff was for being in a roadway unnecessarily. Before trial, he plaintiff had received $50,000 from the person who caused the accident. Therefore, the judge reduced the plaintiff’s verdict to $0.

Case #8 involved an improper lane change by a truck. The plaintiff suffered a herniated lumbar disc, and underwent surgery. The jury awarded the plaintiff $113,600 with a reduction for 65% comparative negligence, which reduced the judgment to $39,760. The defendant argued that the plaintiff changed lanes into the defendant’s truck, while the plaintiff argued that the defendant changed lanes into the plaintiff’s vehicle.

Case #9 also involved an improper lane change, however the comparative negligence percentage is much lower at 27%. This case involved a car and a tractor-trailer, where the tractor-trailer driver, the defendant improperly changed lanes. This is a departure from Case #8, where it is most likely that the plaintiff did the lane changing. The verdict of the case was $62,500. After reduction for comparative negligence, the judgement dropped to $33,075. The plaintiff in this Case was permanently unable to extend his right finger, but the jury found no permanent injury, so there was no money allocated for pain and suffering.

There are many variables that go into determining comparative negligence and why some plaintiffs receive higher comparative negligence percentages than others. You can see by the above cases that comparative negligence is often found where the plaintiff is accused of breaking the law, such as improper lane changes or pedestrians violating the defendant’s right of way. If you have a case involving comparative negligence, it’s extremely important to hire a skilled plaintiff’s attorney, who can anticipate the comparative negligence defense and implement a strategy designed to obliterate the defendant’s comparative negligence argument. If the attorney can show that the defendant broke the law, broke a rule, or violated some industry standard, but the plaintiff acted as a reasonably careful person would have acted under the circumstances, a comparative negligence verdict can be avoided. The amount of comparative negligence that should be assigned to a case should be determined on a case by case basis, considering the nuances of the evidence in the case. I am always pleased to discuss case value with other attorneys or with potential clients. If you have a particular case you would like to discuss, please call me at (850)224-3310.