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  • Writer's pictureLandon Stinson

401.22 DEFENSE ISSUES (Florida Standard Jury Instruction)


If, however, the greater weight of the evidence supports [(claimant’s) claim] [one or more of (claimant’s) claims], then you shall consider the defense[s] raised by (defendant).

On the [first]* defense, the issue[s] for you to decide [is] [are]:

*The order in which the defenses are listed below is not necessarily the order in which the instructions should be given.

a. Comparative negligence generally:

whether (claimant or person for whose injury or death claim is made) was [himself] [herself] negligent in (describe alleged negligence) and, if so, whether that negligence was a contributing legal cause of injury or damage to (claimant).


1. Instruction 401.4, defining negligence, is applicable both to defendant’s negligence and claimant’s negligence. The consequences of negligence on claimant’s part are explained to the jury by instruction 401.22a. There being no need to give claimant’s negligence the special designation “comparative negligence,” the committee recommends that “comparative negligence” not be referred to in the instruction and that the term not be defined.

2. Special verdicts and special interrogatories. Special verdicts are required in all jury trials involving comparative negligence. Lawrence v. Florida East Coast Railway Co., 346 So. 2d 1012 (Fla. 1977).

3. Presumption of reasonable care. The committee recommends that no instruction be given to the effect that a deceased person or an injured person or either party is presumed to have exercised reasonable care for his own safety or for the safety of others. If such a presumption is thought to take the place of evidence and make a prima facie case for the party having the burden of proof, the presumption “disappears” upon the introduction of any evidence tending to overcome it. Gulle v. Boggs, 174 So. 2d 26 (Fla. 1965). If the presumption is thought to operate against the party having the burden of proof, as in the case of the presumption that a decedent was not comparatively negligent but was exercising reasonable care for his own safety, such an instruction is merely a way (and a confusing way, at that) of stating that the burden of proving comparative negligence is on the party asserting it. In either case, an instruction on the subject is superfluous. But compare Louisville & Nashville Railroad Co. v. Yniestra, 21 Fla. 700 (1886); Jacksonville Electric Co. v. Sloan, 52 Fla. 257, 42 So. 516 (Fla. 1906); and Martin v. Makris, 101 So. 2d 172 (Fla. 3d DCA 1958).

b. Driver’s comparative negligence (when owner sues third party):

whether (driver), while operating a vehicle owned by (claimant) *[with [his] [her] consent, express or implied,] was [himself] [herself] negligent in the operation of the vehicle and, if so, whether that negligence was a contributing legal cause of the injury or damage to (claimant).

*The phrase within brackets should be used only if there is an issue as to the owner’s knowledge and consent.

c. Joint enterprise (driver’s negligence):

whether (driver) was operating the automobile at the time and place of the [collision] [incident in this case] to further the purposes of a joint enterprise in which [he] [she] was engaged with (claimant passenger); if so, whether (driver) was negligent in the operation of the automobile; and, if so, whether that negligence was a contributing legal cause of [loss] [injury] [or] [damage] to (claimant). A joint enterprise exists when two or more persons agree, expressly or impliedly, to engage in an activity in which they have a common interest in the purposes to be accomplished and equal rights to control and manage the operation of an automobile in the enterprise. Each member of a joint enterprise is responsible for the negligence of another member in the operation of the automobile if that negligence occurs while [he] [she] is acting under the agreement and to further the purposes of the joint enterprise.

d. Comparative negligence of parent predicated on other parent’s negligence (claim for death of child):

whether (parent) was negligent in caring for and supervising the child, (name); if so, whether that negligence was a contributing legal cause of the death of (child), and, if so, whether (other parent), in the exercise of reasonable care, should have anticipated that negligence on the part of (parent).

e. Comparative negligence of custodian of child other than parent:

whether, before the incident in this case, (claimant) placed (child) in the care and custody of (custodian), if so, whether (custodian) was negligent in caring for and supervising the child, (name); and, if so, whether that negligence was a contributing legal cause of [injury] [and] [death] to (child).


Wynne v. Adside, 163 So. 2d 760 (Fla. 1st DCA 1964). See also Winner v. Sharp, 43 So. 2d 634 (Fla. 1950).

f. Apportionment of fault:

whether (identify additional person(s) or entit(y)(ies)) [was] [were] also [negligent] [at fault] [responsible] in (describe alleged negligence); and, if so, whether that [negligence] [fault] [responsibility] was a contributing legal cause of [loss] [injury] [or] [damage] to (claimant, decedent, or person for whose injury claim is made).


1. See F.S. 768.81 (2019); Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). In most cases, use of the term “negligence” will be appropriate. If another type of fault is at issue, it may be necessary to modify the instruction and the verdict form accordingly.

2. For fault to be apportioned among multiple tortfeasors, the tortfeasors must be joint tortfeasors. See Grobman v. Posey, 863 So. 2d 1230, 1234 (Fla. 4th DCA 2003). Joint tortfeasors are those “who act together in committing wrong, or whose acts if independent of each other, unite in causing single injury.” Letzter v. Cephas, 792 So. 2d 481, 486 (Fla. 4th DCA 2001) (internal quotations omitted). For discussions as to whether apportionment is appropriate, see, e.g., Specialty Hosp.-Gainesville, Inc. v. Barth, 277 So. 3d 201, 215 (Fla. 1st DCA 2019) (apportionment is not appropriate where the defendant and the third part are successive tortfeasors); Grobman, 863 So. 2d at 1236 (apportionment is not appropriate where liability between the defendant and the third party is derivative); Suarez v. Gonzalez, 820 So. 2d 342, 344 (Fla. 4th DCA 2002) (apportionment is not appropriate between a defendant and a third party where the defendant hired the third party to perform a nondelegable duty).

g. Assumption of risk:

whether (claimant) knew of the existence of the danger complained of; realized and appreciated the possibility of injury as a result of such danger; and, having a reasonable opportunity to avoid it, voluntarily and deliberately exposed [himself] [herself] to such danger.


Blackburn v. Dorta, 348 So. 2d 287 (Fla. 1977), abolished the assumption of risk defense except in cases identified in that opinion.

[Adopted March 4, 2010 (35 So. 3d 666); Amended August 13, 2021]

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