Part 2 of 5: The Law That Made a $500,000 Bicycle Case an All-or-Nothing Fight
In Part 1 of this series, we described a case in which a cyclist was struck by a commercial van and left with catastrophic injuries. The defense blamed him for the crash. The case ultimately settled for $500,000.
That result depended on one question more than any other: who carried the greater share of fault? The answer mattered so much because of a change to Florida law in 2023. This post explains that change and why it matters to anyone injured in Florida.
How Florida Law Used to Work
For fifty years, Florida followed pure comparative negligence. The Florida Supreme Court adopted the rule in 1973, and the Legislature later wrote it into section 768.81, Florida Statutes.
Under pure comparative negligence, an injured person’s recovery was reduced by his own share of fault, but never eliminated. A person found 30% at fault recovered 70% of his damages. A person found 80% at fault still recovered 20%.
That system gave defendants a reason to argue about fault, but the argument was about how much the injured person would recover, not whether he would recover anything.
What HB 837 Changed
In March 2023, Florida enacted HB 837, a broad tort reform law. One of its most significant changes added a new subsection to section 768.81. Under section 768.81(6), in most negligence actions, a party found more than 50% at fault for his or her own harm may not recover any damages.
This is called modified comparative negligence, and it is often described as the 51% rule. The change applies to most negligence cases filed after March 24, 2023. Medical negligence cases are the main exception.
For injured people, the practical effect is a cliff. At 50% fault, you recover half your damages. At 51%, you recover nothing.
How the Math Works
Consider a hypothetical case in which a jury finds the injured person’s total damages to be $1,000,000. These numbers are for illustration only and are not the numbers from our case.
- If the jury finds the injured person 10% at fault, he recovers $900,000.
- If the jury finds him 40% at fault, he recovers $600,000.
- If the jury finds him 50% at fault, he still recovers half.
- If the jury finds him 51% at fault, he recovers $0.
A single percentage point can be the difference between a substantial recovery and nothing at all, and the severity of the injury does not change that. A person with permanent, life-altering injuries who is found 51% at fault receives the same amount as someone who was not hurt at all.
Why the Rule Hits Cyclists and Pedestrians Hard
Crashes between vehicles and bicycles often happen quickly, with few witnesses and little physical evidence of who did what. The cyclist is usually the person most seriously hurt, and sometimes the person least able to explain what happened.
That creates an opening for the defense. If the driver’s version of events is the only detailed account, the defense can build a fault story around it: the rider swerved, the rider was hard to see, the rider was in the wrong place on the road. Part 3 of this series covers those arguments in detail.
Under the old rule, winning that argument would have reduced a cyclist’s recovery. Under the 51% rule, winning it can end the case.
How the 51% Rule Shapes Settlement
Most injury cases settle, and the 51% rule changes how both sides value them.
Insurers now weigh not only how much a jury might award, but also the chance that a jury puts the injured person over the 50% line. If the defense believes that chance is high, it may offer very little or nothing, because a zero verdict is a real possibility.
The injured person’s side has to do the opposite: build the evidence that keeps fault on the defendants and make the risk of a large verdict real for the insurer.
That is what happened in our case. Early on, the defense treated our client as the party mostly at fault. In our assessment, after depositions, the evidence showed the defendants carried more than 50% of the responsibility. Once the defense faced that risk, the case resolved for $500,000. Part 4 explains how the depositions changed the picture.
Fault Can Be Spread Among Several Parties
Florida juries assign fault percentages to everyone whose conduct contributed to a crash. That can include the injured person, the driver, a vehicle owner, an employer, and in some cases people or companies who are not parties to the lawsuit.
This matters in two ways. The defense may try to shift blame to the injured person or to others who are not in the case. And identifying every responsible party, such as an employer that put an unsafe driver on the road, can change how the fault picture looks to a jury. Part 5 covers why suing the company, not only the driver, mattered in our case.
What You Should Do If You Might Be Blamed
If you were injured in a crash and there is any chance the other side will say you caused it, the early steps matter more than ever.
Be careful about what you say to the other driver’s insurance company. A recorded statement given in the days after a crash, while you are hurting and before you know all the facts, can become the foundation of a fault argument against you.
Preserve what you can. Photos of the scene, your bicycle or vehicle, your injuries, and the lighting and road conditions can all become important. So can the names of witnesses.
Get the evidence the other side controls before it disappears. Commercial vehicles often carry cameras, GPS systems, and telematics that record speed and braking. That data may be overwritten if no one demands that it be preserved.
Talk to an attorney before assuming your case is lost. A case that looks weak based on the police report or the other driver’s account may look very different once the evidence is fully developed.
How Licznerski Law, PLLC Handles Comparative Fault
Licznerski Law, PLLC is a boutique firm. We take a selective number of cases, and your attorney handles your case directly.
We will be candid about the 51% rule from the start. HB 837 made some cases riskier than they used to be, and we will not pretend otherwise. If your facts create a real risk that you could be found more than half at fault, we will explain that risk and what it means for your options. When the facts support it, we will do the work needed to show where responsibility belongs, as we did in the case that settled for $500,000.
We represent injured people throughout the Tampa Bay area, including Hillsborough, Pinellas, Pasco, and Hernando Counties, and in communities such as Tampa, Oldsmar, Clearwater, St. Petersburg, New Port Richey, Brooksville, and Spring Hill, as well as statewide.
Frequently Asked Questions
What is Florida’s 51% rule?
Under section 768.81(6), Florida Statutes, a person found more than 50% at fault for his or her own injuries cannot recover damages in most negligence cases. A person found 50% at fault or less can recover, but the recovery is reduced by his or her percentage of fault.
When did the 51% rule take effect?
It was enacted as part of HB 837 in March 2023 and applies to most negligence cases filed after March 24, 2023.
What happens if I am found exactly 50% at fault?
You can still recover, but your damages are reduced by half. The bar applies only when your fault is greater than 50%.
Does the 51% rule apply to medical malpractice cases?
No. Medical negligence cases are excluded from the rule.
Who decides the fault percentages?
In a trial, the jury assigns a percentage of fault to each person or company whose conduct contributed to the injury. In settlement negotiations, both sides estimate how a jury would likely assign fault.
Can I still get a meaningful settlement if the other side says the crash was my fault?
Possibly. The other side’s position at the start of a case is not the final word. In the case discussed in this series, the defense blamed our client, and the case settled for $500,000 after the evidence was developed.
Disclaimer: The result described here was obtained in a specific matter based on its own facts and circumstances. Past results do not guarantee a similar outcome in any other case. Every case is different, and the outcome of any matter depends on its particular facts and the applicable law. The settlement did not include any admission of liability. This post is general information, not legal advice, and reading it does not create an attorney-client relationship.
Coming next in this series: Part 3, How Insurance Companies Build a Fault Case Against Cyclists.
Talk to an Attorney
If you were injured in a crash and the other side is blaming you, contact Licznerski Law, PLLC before you assume your claim is over.
Licznerski Law, PLLC
Phone: 813-934-3519
Email: [email protected]
Web: licznerskilaw.com
Boutique Representation. Real Results. Your Attorney, Not a Case Number