Florida personal injury law operates under a comparative negligence system, in which negligence may be apportioned among various parties. In a lawsuit stemming from a rear end car accident, for example, a jury may find that the driver suing is 30 percent liable for the crash and that the driver being sued is 70 percent liable. In that scenario, the driver who sued would generally be entitled to an award of 70 percent of his or her damages.

In Hartong v. Bernhart, Florida’s Fifth District Court of Appeal explains that a plaintiff should be able to amend his or her pleadings to conform to the evidence presented at trial and ensure that the jury is instructed on the comparative negligence standard.

Hartong sued Bernhart individually and on behalf of her deceased daughter, Ms. Wilkinson, alleging negligence and wrongful death. She alleged specifically that Wilkinson died of MRSA lobular necrotizing pneumonia, which Bernhart failed to identify and treat. In response, Benrhart argued that Wilkinson was comparatively negligent because she had alcohol and hydrocodone in her system at the time, which combined with the pneumonia to cause her death by limiting her ability to breathe.