PHILLIP CODY AND CYNTHIA CODY, APPELLANTS,
v.
MICHAEL KERNAGHAN AND JOAN KERNAGHAN, HIS WIFE, INDIVIDUALLY, AND AS PARENTS AND NATURAL GUARDIANS OF DAVID KERNAGHAN, A MINOR, APPELLEES

Fla. 4th DCA | 1996-10-16
No. 94-2541
WARNER, J., and SORONDO, RODOLFO, Jr., Associate Judge, concur.
682 So. 2d 1147 Florida District Court of Appeal, Fourth District (1996) Positive Treatment
Cited by 8 cases

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Holding

The trial court erred in refusing to reduce economic damages by the plaintiff's percentage of comparative fault.


Headnotes

[1] Under Florida law, a claimant's contributory fault diminishes proportionately the amount awarded as economic and noneconomic damages, but does not bar recovery.

[2] In Florida, the doctrine of comparative negligence requires that both economic and noneconomic damages be reduced by the percentage of fault attributable to the plaintiff…

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Facts & Procedural History

A child was injured on a trampoline, and his parents sued the homeowners for negligence. The jury found the child 35% negligent and the homeowners 65%…

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Opinion of the Court
SHAHOOD, Judge.

SHAHOOD, Judge.

David Kernaghan, a minor child, was injured on a trampoline while attending a birthday party at the home of appellants/defendants, Phillip and Cynthia Cody. His parents, appellees/plaintiffs, Michael and Joan Kernaghan, sued the Codys for negligence and negligent supervision.

Following trial, the jury found the Codys to be sixty-five percent (65%) negligent and David Kernaghan to be thirty-five percent (35%) negligent. The jury, without any reduction in the amount of damages for plaintiffs’ comparative negligence, found the plaintiffs’ damages to be:

Past medical expenses: $23,110.60

Future medical expenses: $ 7,000.00

Joan Kernaghan’s lost wages: $ 3,100.00

Non-economic damages representing

pain and suffering: $ 5,100.00

Based upon the jury’s determination of comparative negligence, the trial court reduced the jury’s award for pain and suffering by thirty-five percent (35%) from $5,100.00 to $3,315.00. The trial court, however, refused to reduce the remaining economic damages by plaintiff David Kernaghan’s comparative fault. The trial court reasoned that under Florida law, there was to be no reduction of economic damages for comparative negligence because defendants’ comparative fault exceeded plaintiffs’ fault. Finding this to be error, we reverse and remand.

The theory of comparative negligence was adopted in Florida in Hoffman v. Jones, 280 So. 2d 431 (Fla.1973). Under this doctrine, if both the plaintiff and defendant are at fault, the plaintiff can still recover, but his or her recovery is limited to the proportion of damages proximately caused by the defendant’s negligence. The plaintiffs recovery is reduced by his or her percentage of fault. Id.

In 1986, the Legislature codified the doctrine of comparative negligence. Section 768.81, Florida Statutes (1993), provides in relevant part:

(1) Definition.—As used in this section, “economic damages” means past lost income and future lost income reduced to present value; medical and funeral expenses; lost support and services; replacement value of lost personal property; loss of appraisal fair market value of real property; costs of construction repairs, including labor, overhead, and profit; and any other economic loss which would not have occurred but for the injury giving rise to the cause of action.

(2) Effect of contributory fault.—In an action to which this section applies, any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery.

(3) Apportionment of damages.—In cases to which this section applies, the court shall enter judgment against each party liable on the basis of the doctrine of joint and several liability; provided that with respect to any party whose percentage of fault equals or exceeds that of a particular claimant, the court shall enter judgment with respect to economic damages against that party on the basis of the doctrine of joint and several liability.

(emphasis added).

In refusing to reduce the economic damages award, the trial court misinterpreted section 768.81 and the supreme court’s holding in Fabre v. Marin, 623 So. 2d 1182 (Fla.1993), receded from in part on other grounds, Wells v. Tallahassee Memorial Re gional Medical Center, Inc., 659 So. 2d 249 (Fla.1995). It concluded that the doctrine of comparative negligence did not apply to economic damages where the defendants’ negligence exceeded the negligence attributable to the plaintiffs.

Neither section 768.81 nor Fabre, however, supports the result in this case. Reading all subsections of section 768.81 in pari materia, the doctrine of comparative negligence must be applied to reduce both economic and noneconomic damages by the percentage of fault which can be attributed to the plaintiff. See § 768.81(2), Fla. Stat. (1993). As to the reduced damages, where there are two or more defendants, each defendant will be jointly and severally liable; provided that joint and several liability for economic damages will be imposed only if each defendant’s comparative fault exceeds the fault attributable to the plaintiff. See § 768.81(3), Fla. Stat. (1993). Applying section 768.81 to the case at bar, the entire damages award, including economic and non-economic damages, should have been reduced by the percentage of fault attributable to David Kernaghan and then joint and several liability should have been imposed against the Codys for the Kernaghans’ reduced damages.

The supreme court’s holding in Fabre does not mandate a different result. Fabre, which did not involve any comparative negligence by the plaintiff, merely states that fault should be apportioned between all entities who contributed to the ultimate result, whether or not each responsible entity was party to the litigation. Consistent with this holding and section 768.81(2), the Kerna-ghans must also bear their percentage of fault and thus, both economic and non-economic damages should have been reduced by thirty-five percent.

Reversed and remanded with directions to enter final judgment consistent with this opinion.

WARNER, J., and SORONDO, RODOLFO, Jr., Associate Judge, concur.


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Citator

Cited By

  • Metro. Dade Cnty. v. Jesumene Frederic, 698 So. 2d 291 (Fla. 3d DCA 1997)
    …enumerated exceptions. Under section 768.81(3), Florida Statutes (1995), “joint and several liability for economic damages will be imposed only if each defendant’s comparative fault exceeds the fault attributable to the plaintiff.” Cody v. Kemaghan, 682 So. 2d 1147, 1149 (Fla. 4th DCA 1996). Accord Conley; Williams v. Arai Hirotake, Ltd., 931 F. 2d 755 (11th Cir.1991). Here, the County’s percentage of fault was less than the plaintiff’s. The County cannot be held jointly and severally liable for the economic d…
  • Gerald F. Horton, M.D. v. Channing, 698 So. 2d 865 (Fla. 1st DCA 1997)
    …titlement to the economic damages pursuant to section 768.21(6)(b), Florida Statutes. The trial court additionally erred in failing to set off the economic damage award by the amount of comparative negligence of the plaintiffs. See Cody v. Kemaghan, 682 So. 2d 1147 (Fla. 4th DCA 1996). We also determine that reversal is required as to the granting of attorney’s fees pursuant to section 768.79, Florida Statutes, in light of our decisions requiring reduction of the economic damages. This action originated as a…
  • Powermatic, Inc. v. Bismar Gonzalez, 688 So. 2d 426 (Fla. 3d DCA 1997)
    …PER CURIAM. Affirmed. § 768.81(3), Fla. Stat. (1995); Cody v. Kernaghan, 682 So. 2d 1147 (Fla. 4th DCA 1996); Perry v. Red Wing Shoe Co., 597 So. 2d 821 (Fla. 3d DCA 1992); Moorman v. American Safety Equipment, 594 So. 2d 795 (Fla. 4th DCA), review denied, 606 So. 2d 1164 (Fla.1992); Tallahassee Furniture Co., Inc. v. Harrison, 583 So.…

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