AURELIO GUTIERREZ AND FRANCISCA GUTIERREZ, HIS WIFE, APPELLANTS,
v.
ORVAL H. MURDOCK ET AL., APPELLEES
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In this comparative negligence case arising from a head-on automobile collision, the Florida appellate court reversed a jury verdict that awarded plaintiffs only 10% of damages because the special verdict form failed to require the jury to independently apportion negligence between the plaintiff and defendant, rather than inadvertently apportioning negligence to an unknown third party.
A verdict form submitted to a jury in comparative negligence cases must clearly require independent findings of the percentage of negligence attributable to both the plaintiff and the defendant as to each other to permit proper apportionment of damages, particularly when an unknown tortfeasor is involved in the case.
[1] A special interrogatory verdict form must require the jury to make an independent finding of the percentage of negligence of both the plaintiff and the defendant as to ea…
[2] In comparative negligence cases, the jury must apportion the negligence of the plaintiff and the defendant to determine the amount of damages due to the plaintiff.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In other words, the jury should apportion the negligence of the plaintiff and of the defendant; then in reaching the amount due the plaintiff, the jury should give the plaintiff only stick an amount proportioned with his negligence and the negligence of the defendant.”
Statement from Hoffman v. Jones establishing the proper procedure for comparative negligence apportionment by juries
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Join FLexlaw to unlock all legal intelligenceAppellant Aurelio Gutierrez was injured in a head-on collision with a vehicle driven by appellee Orval H. Murdock. Murdock allegedly crossed into onco…
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RAWLS, JOHN S., Associate Judge.
The case sub judice arose out of an automobile collision wherein the appellee, Orval H. Murdock, allegedly to avoid a collision with an unknown vehicle crossed over into oncoming traffic and crashed head-on into a vehicle driven by the appellant, Aurelio Gutierrez. In crossing into the oncoming lanes, appellee completely crossed one oncoming lane and entered into the second lane before impact. The cause was tried before a jury and, at the conclusion, the trial court [over appellants’ objection] submitted the following special interrogatory verdict form to the jury:
Pursuant thereto, the jury found for the appellants, awarding them 10% of the amount of the damages which the jury determined the appellants’ suffered. By this appeal, the appellants contend that this special verdict was erroneous. We agree, and hereby reverse.
The Supreme Court of Florida, in adopting the comparative negligence doctrine as the law of Florida, in Hoffman v. Jones, Fla.1973, 280 So. 2d 431, stated:
* * * * * * “ * * * In other words, the jury should apportion the negligence of the plaintiff and of the defendant; then in reaching the amount due the plaintiff, the jury should give the plaintiff only stick an amount proportioned with his negligence and the negligence of the defendant. * * * ” [emphasis added] * * * * * *
Clearly then, in order to properly determine the award of damages, the jury must first determine both the negligence of the plaintiff and the defendant as related to each other. One might say that by inference the negligence of the plaintiff can be ascertained by merely deducting that percentage of negligence attributed by the jury to the defendant from 100%. However, that is not necessarily always true, but is dependent on the facts of each case.
In cases such as the case sub judice, where the existence of an unknown tortfeasor is injected into the proceeding, unless the verdict form submitted to the jury clearly requires an independent finding of negligence [if any] on the part of the plaintiff and on the part of the defendant to be apportioned between them, there exists the possibility that the jury might erroneously attempt to apportion the negligence between the defendant tortfeasor and the unknown tortfeasor, contrary to the holding in Issen v. Lincenberg, Fla. App.1974, 293 So. 2d 777. Therefore, a verdict form submitted to a jury should provide for a finding of the percentage of the negligence of both the plaintiff and the defendant as to each other to permit apportionment of damages.
In light of the foregoing, the judgment appealed is reversed and remanded for further proceedings consistent herewith.
Reversed and remanded, with directions.
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Travelers Ins. Co. & Matthews Constr. Co. v. Audie L. Ballinger and Dennis Ballinger, 312 So. 2d 249 (Fla. 1st DCA 1975)…an v. Jones, supra; Issen v. Lincenberg, supra. The rule’s application is limited to the parties of a suit. Hoffman v. Jones, supra. There can be no contribution or apportionment between a defendant and a non-party tortfeasor. Gutierrez v. Murdock, 300 So. 2d 689 (Fla.App.1974). The jury must first determine the negligence of the plaintiff and of the defendant as related to each other and then apportion the damages. Certiorari denied. McCORD, J., concurs. BOYER, Acting C. J., concurs specially.…
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Seaboard Coast Line R.R. Co. v. COX, 308 So. 2d 154 (Fla. 2d DCA 1975)…hout apportionment or whether it must be applied to limit the recovery to 85% of the damages which are ultimately determined. The plaintiff refers to Issen v. Lincenberg, Fla.App.3d, 1974, 293 So. 2d 777, and Gutierrez v. Murdock, Fla.App.3d, 1974, 300 So. 2d 689, for the proposition that the apportionment procedure followed by the court in the prior action was erroneous. Thus, the plaintiff contends that the trial court and this court must follow the law as it exists at the time the judgment is entered. See…
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Marvine Francis v. LA Pierre, 390 So. 2d 470 (Fla. 5th DCA 1980)…a verdict finding that Francis was guilty of no negligence 2 and that La Pierre was negligent.3 Francis contends that this left but two issues, no-fault threshold and, if met, the amount of her damages. She further [*472] cites Gutierrez v. Murdock, 300 So. 2d 689 (Fla. 3d DCA 1974), and contends the trial court erred in not limiting the jury’s finding to the negligence of Francis and La Pierre as related to each other, where, as here and in Gutierrez, defense counsel interjects the issue of the possible negl…
Authorities Cited
- Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)
- Issen v. Lincenberg, 293 So. 2d 777 (Fla. 3d DCA 1974)