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The Rule, in the Words of the Statute
Two subsections of Fla. Stat. § 768.81 do the work. Subsection (2) is the apportionment rule: “In a negligence action, contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery, subject to subsection (6).”
Subsection (6) is the bar: “In a negligence action to which this section applies, any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages.”
Together they produce a sliding scale with a cliff at the end. A rider found 20 percent at fault has an award reduced by 20 percent. A rider found exactly 50 percent at fault has it halved. A rider found 51 percent at fault recovers nothing at all — not a reduced share, nothing. The difference between 50 and 51 percent is the difference between a halved recovery and none.
What Changed in 2023, and Where the Date Comes From
Florida used to be a pure comparative negligence state. A claimant found 90 percent at fault still recovered 10 percent of their damages. Section 9 of ch. 2023-15, Laws of Florida, replaced that with the modified system in § 768.81(6).
One point of precision matters here, because it is where a great deal of published Florida content goes wrong. The March 24, 2023 changeover date is not in § 768.81. There is no sentence in the statute that mentions it. The date comes from the applicability clause of the session law, ch. 2023-15. Anything on this site that states the date attributes it to the session law, and so should anything you read elsewhere — a guide that cites “§ 768.81” for the date is citing a provision that does not contain it.
The same reform is the reason the limitations period moved. Negligence causes of action accruing on or after that date carry two years under Fla. Stat. § 95.11(5)(a), not the four years that applied before. Sources still citing the old § 95.11(3)(a) are describing superseded law.
David I. Shiner, Esq.
Founder, Shiner Law Group · AV Preeminent® rated · Florida Bar member since 2002
David I. Shiner founded Shiner Law Group and has been a member of The Florida Bar since 2002. He is a graduate of Nova Southeastern University’s law school and holds an AV Preeminent® rating from Martindale-Hubbell. The firm represents injured people across Florida from offices in Boca Raton, West Palm Beach, Fort Lauderdale, Fort Pierce, Orlando, Wellington, and Belle Glade, and handles these cases on a contingency basis with free consultations and no attorney’s fee unless there is a recovery.
How Wide the Section Reaches
Section 768.81 is not confined to ordinary road negligence. Fla. Stat. § 768.81(1) defines a “negligence action” to encompass civil actions based on negligence, strict liability, products liability, professional malpractice, and breach of warranty, and separately defines a “products liability action” covering claims based on strict liability, negligence, breach of warranty, or nuisance theories for a defective product.
For an e-bike case that breadth matters more than it would in a car case. A crash caused by a battery failure, a fork failure, or a brake failure is a product claim against a manufacturer or retailer, and it sits inside § 768.81 alongside any negligence claim against a driver. Fault can be apportioned across a driver, a manufacturer, a retailer, a road authority, and the rider in a single action.
“Economic damages” is also defined in § 768.81(1), and includes past and future lost income, medical expenses, funeral expenses, lost support, and the replacement value of property. Both economic and noneconomic damages are reduced proportionately under § 768.81(2).
How the Argument Actually Gets Made Against a Rider
Comparative fault is where an e-bike case is usually won or lost, because a rider is visible, unprotected, and easy to characterize as having done something wrong. The arguments are predictable, and most of them are answered by statute rather than by argument.
| The Argument | What the Statute Says |
|---|---|
| “You weren’t wearing a helmet.” | Fla. Stat. § 316.2065(18): helmet non-use “may not be considered evidence of negligence or contributory negligence.” See the helmet law guide. |
| “You weren’t far enough right.” | Fla. Stat. § 316.2065(5)(a) requires riding “as close as practicable” to the right-hand curb — practicable, not possible. Debris, a door zone, or a pavement defect bears on what was practicable. |
| “You shouldn’t have been on the sidewalk.” | Fla. Stat. § 316.1995(1) expressly excepts s. 316.20655 from the sidewalk prohibition. Whether a local ordinance restricts it is a separate question — see where you can ride. |
| “You had no lights.” | Fla. Stat. § 316.2065(7) sets the requirement between sunset and sunrise. This one can carry real weight, and it is a genuine apportionment question. |
Because the bar at § 768.81(6) is absolute above 50 percent, a defense does not need to prove a rider caused the crash. It only needs to move the apportionment past the halfway point. That is why the evidence gathered in the first days — the light, the lane position, the label on the bicycle, the road surface — determines so much of what follows.
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