Bill Text: FL S0744 | 2010 | Regular Session | Introduced

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Bill Title: Negligence/Products Liability Action [SPSC]

Sponsorship: Partisan Bill (Republican 4)

Status: (Failed) 2010-04-30 - Died in Committee on Judiciary [S0744 Detail]

Download: Florida-2010-S0744-Introduced.html

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Florida Senate - 2010                                     SB 744 
 
By Senators Richter and Fasano 
37-00632B-10                                           2010744__ 
1                        A bill to be entitled 
2         An act relating to negligence; amending s. 768.81, 
3         F.S.; defining the terms “negligence action” and 
4         “products liability action”; requiring the trier of 
5         fact to consider the fault of all parties to an 
6         accident when apportioning damages in a products 
7         liability action alleging an additional or enhanced 
8         injury; providing an effective date. 
9 
10  Be It Enacted by the Legislature of the State of Florida: 
11 
12         Section 1. Section 768.81, Florida Statutes, is amended to 
13  read: 
14         768.81 Comparative fault.— 
15         (1) DEFINITIONS DEFINITION.—As used in this section, the 
16  term: 
17         (a) “Economic damages” means past lost income and future 
18  lost income reduced to present value; medical and funeral 
19  expenses; lost support and services; replacement value of lost 
20  personal property; loss of appraised fair market value of real 
21  property; costs of construction repairs, including labor, 
22  overhead, and profit; and any other economic loss that which 
23  would not have occurred but for the injury giving rise to the 
24  cause of action. 
25         (b) “Negligence action” means, without limitation, a civil 
26  action for damages based upon a theory of negligence; strict 
27  liability; products liability; or professional malpractice, 
28  whether couched in terms of contract, tort, or breach of 
29  warranty and like theories. The substance of an action, not 
30  conclusory terms used by a party, determines whether an action 
31  is a negligence action. 
32         (c) “Products liability action” means a civil action based 
33  upon a theory of strict liability, negligence, breach of 
34  warranty, nuisance, or similar theories for damages caused by 
35  the manufacture, construction, design, formulation, 
36  installation, preparation, or assembly of a product. The term 
37  includes an action alleging that injuries received by a claimant 
38  in an accident were greater than the injuries the claimant would 
39  have received but for a defective product. The substance of an 
40  action, not the conclusory terms used by a party, determines 
41  whether an action is a products liability action. 
42         (2) EFFECT OF CONTRIBUTORY FAULT.—In a negligence an action 
43  to which this section applies, any contributory fault chargeable 
44  to the claimant diminishes proportionately the amount awarded as 
45  economic and noneconomic damages for an injury attributable to 
46  the claimant’s contributory fault, but does not bar recovery. 
47         (3) APPORTIONMENT OF DAMAGES.—In a negligence action cases 
48  to which this section applies, the court shall enter judgment 
49  against each party liable on the basis of such party’s 
50  percentage of fault and not on the basis of the doctrine of 
51  joint and several liability. 
52         (a)1. In order to allocate any or all fault to a nonparty, 
53  a defendant must affirmatively plead the fault of a nonparty 
54  and, absent a showing of good cause, identify the nonparty, if 
55  known, or describe the nonparty as specifically as practicable, 
56  either by motion or in the initial responsive pleading when 
57  defenses are first presented, subject to amendment any time 
58  before trial in accordance with the Florida Rules of Civil 
59  Procedure. 
60         2.(b) In order to allocate any or all fault to a nonparty 
61  and include the named or unnamed nonparty on the verdict form 
62  for purposes of apportioning damages, a defendant must prove at 
63  trial, by a preponderance of the evidence, the fault of the 
64  nonparty in causing the plaintiff’s injuries. 
65         (b) In a products liability action alleging that injuries 
66  received by a claimant in an accident were greater than the 
67  injuries the claimant would have received but for a defective 
68  product, the trier of fact shall consider the fault of all 
69  entities who contributed to the accident when apportioning fault 
70  between or among the parties and nonparties included on the 
71  verdict form. 
72         (4) APPLICABILITY.— 
73         (a) This section applies to negligence cases. For purposes 
74  of this section, “negligence cases” includes, but is not limited 
75  to, civil actions for damages based upon theories of negligence, 
76  strict liability, products liability, professional malpractice 
77  whether couched in terms of contract or tort, or breach of 
78  warranty and like theories. In determining whether a case falls 
79  within the term “negligence cases,” the court shall look to the 
80  substance of the action and not the conclusory terms used by the 
81  parties. 
82         (b) This section does not apply to any action brought by 
83  any person to recover actual economic damages resulting from 
84  pollution, to any action based upon an intentional tort, or to 
85  any cause of action as to which application of the doctrine of 
86  joint and several liability is specifically provided by chapter 
87  403 or, chapter 498, chapter 517, chapter 542, or chapter 895. 
88         (5) MEDICAL MALPRACTICE.—Notwithstanding anything in law to 
89  the contrary, in an action for damages for personal injury or 
90  wrongful death arising out of medical malpractice, whether in 
91  contract or tort, if when an apportionment of damages pursuant 
92  to this section is attributed to a teaching hospital as defined 
93  in s. 408.07, the court shall enter judgment against the 
94  teaching hospital on the basis of such party’s percentage of 
95  fault and not on the basis of the doctrine of joint and several 
96  liability. 
97         Section 2. This act shall take effect upon becoming a law.