South Florida Injury Lawyer Blog
Florida is one of the deadliest places in the U.S. to travel by foot. In a single recent year, there were more than 10,000 pedestrian accidents in Florida – 765 of those fatal. 
In a recent national analysis of pedestrian accidents by the Governors Highway Safety Commission, researchers reported that among pedestrians 16 or older killed in crashes involving a motor vehicle, nearly one-third of the pedestrians had a blood-alcohol concentration of 0.08% or greater. By comparison, 19% of pedestrian accident fatalities involved a driver who was drunk.
To be clear: Only one of those is against the law. As long as someone isn’t underage or disorderly, it’s not illegal to walk in public while impaired. In fact, walking home (versus driving) is considered a smart choice for those who have been out imbibing.
It’s true that drunk pedestrians may be more prone to violating certain traffic safety rules. But their impairment alone is not evidence of negligence. Even if they did err, they’re unlikely to hurt anyone but themselves. That’s why drivers still bear the brunt of the responsibility. Even if pedestrians do make a make a misstep, that does not mean they cannot file a Florida pedestrian accident lawsuit (or that their survivors cannot file a wrongful death pedestrian lawsuit).
As our Palm Beach personal injury lawyers can explain, the impairment of a plaintiff pedestrian can be used by the defense as evidence of comparative fault in a lawsuit. However, it doesn’t absolve the driver of liability for their own negligence.
Unfortunately, the issue of comparative fault in Florida injury cases has become a much bigger sticking point in recent years, thanks to recent legislative changes. So if you are a pedestrian who was injured while impaired, it is important to hire a personal injury lawyer who knows the proof burden you’re facing — and how to effectively push back on those claims of comparative fault.
Changes in Florida’s Comparative Fault Law
Up until fairly recently, Florida was a pure comparative fault state with respect to negligence claims.
Comparative fault is the degree to which a plaintiff (person who is injured) or decedent (the person who died) was responsible for their own injuries. In most states, comparative fault will not negate a claim – but it can reduce your overall damages proportionately. For example, if the court finds that you sustained $100,000 in total damages but you were 30% comparatively at-fault for your own injuries, then your damages would be proportionately reduced. In that scenario then, the most you could possibly collect would be $70,000.
So comparative fault has always been a strategic defense in negligence cases. The more responsibility the defense can pawn off on the plaintiff, the less they’ll potentially have to pay.
But in Florida, pure comparative fault meant that even if the plaintiff was 99% at-fault for their own injuries, that did not absolve the other party from their 1% of damages. Of course, that’s not an ideal outcome; in a $100,000 case, that would mean you’d only collect $1,000. But it was, in our Palm Beach pedestrian accident attorneys’ opinions, the most fair. Everyone had to pay their share for their own liability.
Unfortunately, that changed with legislative changes to Florida’s comparative fault statute, F.S. 768.81. Now, if the plaintiff is found more than half at fault (51%) or at greater fault than the defendant (in cases where there may be more than one defendant), then they are foreclosed from collecting anything at all.
There’s no bright line rule for how much comparative fault can be attributed to a pedestrian who was drunk, but it does make the fact of their alcohol impairment that much greater of a concern when we’re approaching the question of a lawsuit. Particularly when there are serious injuries involved, such claims should only be trusted to a Palm Beach personal injury lawyer with extensive experience.
Contact the South Florida personal injury attorneys at Halberg & Fogg PLLC by calling toll-free at 1-877-425-2374. Serving West Palm Beach, Miami, Tampa, Orlando and Fort Myers/ Naples. There is no fee unless you win.
Additional Resources:
Pedestrian Traffic Fatalities By State, 2022, GHSA
More Blog Entries:
Injured in a West Palm Beach Pedestrian Accident? Here’s What to Know About Filing a Claim for Damages. March 21, 2024, West Palm Beach Personal Injury Attorney Blog