Confessing Fault

“Defendant covered the plaintiff's mouth with a powerful hand. Struggling, plaintiff peeled the fingers off his face and bent them back. He was dying to tell the truth.” This is not the beginning of a novel, rather a way to start the story of a familiar issue with a new twist comparative fault initiated by plaintiff.

In a tort system which endorses personal responsibility, should courts allow the defense to deny plaintiff the right to confess and accept his fair share of the blame? More specifically, is comparative fault and apportionment of damages a defense which can only be asserted by a defendant; or, may plaintiff seek a reduced award and plead comparative fault against himself? These questions arise from trial in which the defendant claims not to blame the plaintiff. Their implications are also unusual because most plaintiffs do not seek to blame themselves. But, traditional roles have been reversed in recent cigarette injury and death cases where defense strategies are designed to gag a confessor who accepts fault.

Parties to cigarette lawsuits know from questioning hundreds of potential jurors that many people believe smokers share the blame for continuing to smoke (at least after package labels displayed government mandated warnings). However, cigarette manufacturers do not want to be seen as the smoker's initiator, encourager or accomplice. Arguing that their customers were to blame for consuming their products is contrary to their public position. If a cigarette company claimed the smoker was at fault for doing what billions of annual advertising messages asked, then logic indicates the company would also be faulted.

Although most cigarette companies now admit for the first time that the cigarette is inherently dangerous, addictive and that there has never been a ““safe”” one, they also admit that before 1970 they never warned smokers. Despite evidence of culpability, previous trials and focus groups confirm that many people are not inclined to blame the cigarette company at a 100 percent level. As a result, plaintiffs and defendants both attempt to capitalize on the assumption that neither is likely to be found totally right or totally wrong. A courageous plaintiff could ignore thoughts of his own fault and tell the jury he wins all of his damages if they find the defendant is ““any”” at fault. However, without an opportunity to compare and apportion plaintiff's fault, the jury may decide the case against him. Plaintiffs therefore can seek shared blame to avoid a ““shut-out”” and the ““all or nothing”” cigarette company defense which is designed to cause one.

In individual Florida smoker's cases, the cigarette companies have always withdrawn their comparative negligence defense on the eve of trial to eliminate or diminish any chance of compromise. Then instead of voicing terms like negligence or fault during trial, the cigarette defendants try to side step the issue by claiming plaintiff knew the hazards and made a ““choice”” to smoke anyway. They say such a choice is not a negligent one. They also contend plaintiff's choice either broke the chain of causation or his choice was the sole cause of injury. In sum, cigarette actions are defended on the basis that plaintiff's injury was reasonably self-inflicted. The lifestyle choice was plaintiff's in a country which gave him the freedom to buy and use a legal product.

Plaintiffs paint a different picture. Their claims rest on teenage smoking which began when former U. S. President Ronald Reagan and stars and sports heroes like Lucille Ball and Mickey Mantle were all promoting cigarettes. At the time, some people might have thought smoking wasn't a good thing, but most people didn't begin to think it was dangerous until the warning label of the 1970s. Even then, the industry denied danger into the 1990s. During the 1950s and 1960s the tobacco industry told smokers cigarettes were safe, but that if any harmful ingredient were ever found, they would remove it. By the time significant numbers of smokers began to realize the product really was hazardous they were addicted to nicotine. Nicotine addiction is a disease that by definition disables free choice and makes abstinence difficult or impossible.

Many smokers confess they might have tried sooner or harder to break their dependence on cigarettes once they appreciated the danger. What better way is there to illuminate the truth than a voluntary confession? Rather than accept plaintiff's candor, the cigarette companies argue plaintiff's confession may confuse the jury about the smoker's ““choice”” defense. However, comparative fault should not be confused with plaintiff's initial claims and burden. Defendants' denials are not prevented or impaired. Defendants remain free to deny their own fault or allege plaintiff was the sole cause. As noted by the Florida Supreme Court, juries do not consider comparative fault until after finding fault on the part of the defendant. If the jury determines defendant was not at fault or not a legal cause, then plaintiff's confession and his comparative fault are not issues.¹

Defendants also attack plaintiff's right to assert comparative fault on the basis that it is a defense which belongs to them and it is theirs and theirs alone to assert or waive. In puffing their argument against apportionment, the cigarette defendants have been somewhat successful until recently. In April 2003, Florida Judge Anthony Rondolino granted plaintiff John Eastman's request to instruct the jury on comparative negligence and allow apportionment of damages.² The Eastman jury found two cigarette defendants liable for $6.5 million in compensatory damages. That sum was reduced by plaintiff's 50 percent comparative fault. Plaintiff's assertion of comparative fault in Eastman may create a case of first impression in the appellate courtsor does it?³ The cigarette defendants seem to have forgotten it was a plaintiff who first sought to invoke the doctrine of comparative negligence.⁴

By aborting comparative fault, cigarette companies appear to be seeking a return to the law which existed before the Florida Supreme Court and the Florida Legislature adopted the doctrine. Less than 50 years ago a partially negligent defendant was not liable where there was also some negligence on the part of the plaintiff. The plaintiff was barred from recovery.⁵ Recognizing it was unfair to allow a partially negligent defendant to escape all liability, the Florida Supreme Court rejected traditional “contributory” negligence and instead adopted the equitable doctrine of “comparative negligence.” ⁶

Modern law allows a plaintiff who is partially at fault to recover at least part of his damages. The Florida Supreme Court's purpose in adopting comparative negligence was not to benefit defendants or provide an exclusive alternative defense which might lower a judgment against them, but rather its purpose was to benefit plaintiffs and provide them with court access, equity and the ability to recover. Florida juries and judges were thus given the right to compromise the negligence of the defendant by considering that of the plaintiff. The Court said:

“Today it is almost universally regarded as unjust and inequitable to vest an accidental loss on one of the parties whose negligent conduct combined with the negligence of the other party to produce the loss.”

Subsequent to Hoffman v. Jones, “comparative negligence” became “comparative fault.” In products liability cases all forms of conduct contributing to injury, including absolute defenses such as “assumption of the risk” and “open and obvious danger,” have been merged into the single concept of comparative fault.⁷

Contentions that the plaintiff's choices eliminated a defendant's duty or were the sole proximate cause as a matter of law has been evaluated by the Florida Supreme Court many times since Hoffman v. Jones. The Court has fashioned factual analogies, as well as considered the circumstances of each case in rulings which all favor comparative fault. For example, a mother who chooses to enter a burning house to save her child cannot be barred from seeking redress for her injuries; nor would she be barred by entering a burning house simply to retrieve her hat. Retrieval of the hat may be unreasonable, but, nevertheless, the Court indicated that her choice to retrieve a hat would be subject to the doctrine of comparative fault. Thus, the ““choice”” to act in the face of a hazard is nothing more than ““assumption of the risk.”” It is therefore an act subject to the principles of comparative fault.⁸

The Florida Supreme Court's decisions also trump cigarette company contentions that plaintiff's conduct breaks the chain of causation or is the sole proximate cause without qualifying as a comparative fault claim. In West v. Caterpillar Tractor the Court in 1976 said:

““Prior to the adoption of the comparative negligence doctrine, a plaintiff's conduct as the sole proximate cause of his injuries would constitute a total defense.”” At 90. [Emphasis added.]

The same West v. Caterpillar Tractor language was quoted by the Court again in Standard Havens Products in 1994.

Three years before Standard Havens Products the Court addressed the issue directly in Kendrick v. Ed's Beach Service. It was contended by Ed's Beach Service (EBS) that the injured plaintiff, who dove into obviously shallow water, broke the chain of legal causation by his assumption of the risk. In refusing to accept plaintiff's conduct as cause unequated with fault the Court said:

““Respondent EBS argues……its claim involves proximate cause rather than assumption of the risk. Essentially we construe EBS's argument to boil down to a claim that Kendrick's assumption of the risk broke the chain of causation. We cannot accept that argument because such a holding would defeat the principles made clear in Blackburn. [Blackburn v. Dorta, supra.]***

““EBS's argument would have us muck up the legal waters again by holding that while implied assumption of the risk may not be asserted as an affirmative defense to totally bar recovery, it may be asserted as an ordinary defense to break the chain of legal causation. Our decision in Mazzeo inferentially rejected that view, and we expressly do so here. Although a party may be able to refute the element of proximate cause with other facts, evidence of assumption of the risk is wholly inapplicable for that purpose.”” At 938.

Within the Kendrick v. Ed's Beach Service opinion, the Court discussed its decision in Mazzeo v. City of Sebastian, supra. A factual finding had been made that Mazzeo had also engaged in fool-hardy conduct by diving into shallow water. Despite her awareness of danger, the Court found Ms. Mazzeo did not dive with the intention of injuring herself, and that she did not expressly agree to absolve the defendant of liability if she did. Thus, her claim was subject to the doctrine of comparative fault:

““Our decision in Mazzeo rested on the understanding that even when a person engaging in a non-contact sport such as diving knows of an open and obvious danger, the person may still recover damages under the principles of comparative negligence if the elements of the tort have been proven.”” At 937.

Therefore, unless plaintiff was intentionally seeking to harm himself or released the tortfeasor from liability, any suggestion that his conduct contributed to causing his damages must be considered comparative fault. He is allowed to recover no matter his awareness of an open and obvious danger.

Procedurally, plaintiff may trigger the doctrine of comparative fault in two ways: (1) plaintiff may assert it in reply to defendant's answer so as to ““confess and avoid”” defenses that plaintiff's conduct was a cause (or sole cause), that he made a choice, that he acted intentionally, that he should have appreciated an open and obvious danger, etc.;⁹ (2) alternatively, any party's argument or proof that plaintiff's conduct contributed to his injury is a de facto claim of comparative fault and the pleadings should be conformed at plaintiff's request to meet the claim or proof.¹⁰

Hence, if a plaintiff desires to confess and seek comparative fault, the Florida Rules of Court and case law permit him to do so. Allowing all parties to use the doctrine is nothing less than equity for all. How can that be bad?

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1: Blackburn v. Dorta, 348 So.2d 287 (Fla. 1977); also see Standard Havens Products v. Benitez, 648 So.2d 1192 (Fla. 1994).

2: Eastman v. Brown & Williamson Tobacco Corporation, individually and as successor by merger to The American Tobacco Company and Philip Morris USA, Inc., Pinellas County, Florida Circuit Civil Case No. 97-5968-CI-13.

3: Eastman is currently on appeal to the Second DCA.

4: See Jones v. Hoffman, 272 So.2d 529 (Fla. 4th DCA 1973) in which the plaintiff requested a comparative negligence jury instruction.

5: Jones, supra.

6: SeeFla. Stat. 768.81 (2002).

7: West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (Fla. 1976); Blackburn v. Dorta, 348 So.2d 287 (Fla. 1977); Auburn Machine Works Co., Inc. v. Jones, 366 So.2d 1167 (Fla. 1979); Mazzeo v. City of Sebastian, 550 So.2d 1113 (Fla. 1989); Kendrick v. Ed's Beach Service, Inc., 577 So.2d 936 (Fla. 1991); Standard Havens Products, Inc. v. Benitez, 648 So.2d 1192 (Fla. 1994).

8: There are two situations where assumption of the risk may bar a plaintiff's claim: (1) assuming a risk by a contractual waiver, and (2) voluntary participation in a contact sport. See Kendrick and Blackburn, supra.

9: Fla.R.Civ.P. 1.100(a) and 1.110(d).

10: Fla.R.Civ.P. 1.190(b).