With Florida’s population and tourism continuing to grow, questions about “who is at fault” in an accident are more important than ever—especially after a sweeping change in the state’s comparative fault laws in 2023. If you’ve been hurt in Miami, Ft. Lauderdale, or West Palm Beach, don’t wait for an insurance company to decide your future. Reach out for a free assessment of your case from top-rated North Miami Florida attorneys committed to your financial recovery.
How Florida’s Comparative Fault Law Changed in 2023
For decades, Florida used a “pure comparative fault” rule. Under this approach, even someone who was mostly at fault for their accident could still recover some damages—just reduced by their percentage of blame. If a jury found you 90% responsible, you could still recover 10% of your damages. This system reflected Florida’s recognition that life is complicated, accidents are rarely one-sided, and everyone deserves a fair shot at compensation.
But as of March 2023, everything changed. With the passage of House Bill 837, Florida shifted to a “modified comparative fault” standard—one of the biggest changes to state personal injury law in years. Now, if you are found more than 50% at fault for your injuries, you can no longer recover any damages from other responsible parties. This new rule is found in Fla. Stat. § 768.81.
What does this mean for injury victims?
If you are in a car crash, slip and fall, or other accident, the amount of your compensation—and even your right to recover anything at all—now depends on how fault is divided. Insurers and defense attorneys have more incentive to blame you and push your “fault percentage” above 50%, since that would bar you from recovery. This legal change makes every detail, witness, and piece of evidence more important than ever.
Why the 51% Bar Is a Game Changer for Injury Victims
Under the new system, the difference between 49% and 51% fault is everything. If you are found equally at fault or less, you may recover your losses (reduced by your share of fault). But if the blame tips just above half, you recover nothing—even if your medical bills, lost wages, and pain are severe. This harsh line makes the stakes dramatically higher for Miami accident victims.
For example, a Miami resident is rear-ended but may have stopped abruptly. If a jury says you are 51% at fault for stopping too suddenly—even though you were hit by another driver—you lose the right to any recovery. The insurance company’s legal team will scrutinize every detail to push your percentage over the limit.
- Who decides fault? Fault is ultimately determined by a jury at trial, but in reality, most cases settle. Insurance adjusters now negotiate much more aggressively, using this 51% bar as leverage to reduce or deny claims outright.
- What about multiple parties? In crashes with several cars, or injury cases with both a property owner and another individual involved, fault can be divided among all at-fault parties. But if your own share of fault exceeds 50%, you are out of luck—regardless of how many others contributed.
The result: victims must act quickly, gather evidence, and avoid making statements that can be used against them. Representation by experienced personal injury attorneys in Miami is now more crucial than ever.
What Evidence Matters Most Under the New Comparative Fault Law?
With so much riding on how fault is divided, evidence is everything. Insurers will try to build a case that you are mostly at fault, so being prepared makes a significant difference:
- Photos and videos of the accident scene and injuries
- Accident reports and medical records
- Witness statements—independent accounts carry weight
- Vehicle data or surveillance footage, if available
- Documenting hazards (e.g., in slip and fall cases)
It’s critical to seek medical care immediately and follow through on all doctor recommendations. Any delay, gap, or omission will be used by the insurance company to argue you were careless or not truly injured. That can inflate your “fault percentage” and potentially bar your claim.
How Insurance Companies Exploit the New Law
The move to modified comparative fault benefits insurance companies, giving them a powerful tool to avoid paying claims. Adjusters will now:
- Scrutinize every action you took leading up to the injury, from distraction to perceived carelessness
- Claim you ignored warnings (like wet floor signs) or traffic signals
- Argue you failed to take precautions (such as wearing a seatbelt)
- Misrepresent your statements from the scene or in recorded calls
In South Florida, with diverse communities and language barriers, these arguments can be particularly damaging. Small miscommunications or cultural differences may be misinterpreted and used against you. Attorneys in North Miami, FL understand how to counter these tactics and advocate for a fair fault allocation.
What Cases Are Affected—and Are There Any Exceptions?
The sweeping changes to Florida’s comparative fault law now apply to nearly all personal injury and wrongful death claims throughout the state. Most claims—whether from car accidents, slips and falls, or dangerous products—are now subject to the new “51% bar.” Under this rule, an injured person who is found more than 50% at fault for their own harm is completely barred from recovering damages from other responsible parties.
Car and truck accidents are among the most common types of cases affected. If, for example, you are injured in a Miami collision and a jury determines you were 51% or more responsible—perhaps for speeding, distracted driving, or not following traffic laws—you cannot recover compensation from the other driver. The same logic applies to pedestrian and bicycle accidents, which often involve disputes about who was paying attention, who had the right of way, and how the incident unfolded.
Premises liability claims—such as slip and fall or trip and fall injuries—also fall under the new law. Property owners will almost always argue that the injured person was primarily at fault, perhaps by ignoring posted warnings or failing to watch where they were going. Product liability cases involving defective or dangerous products now also hinge on whether the injured party’s conduct contributed more than half to their harm.
Wrongful death claims are subject to the same rule, meaning families of victims must prove their loved one was not mostly responsible for the accident.
There is, however, one major exception. Medical malpractice claims are not governed by the 51% bar. Florida law specifically states that actions arising from medical negligence under Chapter 766 continue to follow the “pure comparative fault” system. This means that even if an injured patient is found 70% or even 90% at fault, they can still recover damages—reduced by their share of fault—unlike in other personal injury actions.
Don’t Let Fault Bar Your Recovery–Call 305-891-0211
Florida’s 2023 tort reform has raised the bar for personal injury claims, making it critical to have skilled representation on your side. Buchalter Hoffman and Dorchak are the personal injury attorneys in Miami that residents rely on to overcome the new comparative fault hurdles and pursue full compensation. If you’ve suffered an injury, timely action is essential. Reach out to our team today, and let us protect your rights, advocate for your interests, and maximize your recovery under the latest Florida law.