drunk driverRecently, a federal appellate court issued a written opinion in a personal injury case involving a fatal drunk driving accident that occurred during the South-By-Southwest Music Festival (SXSW). The case required the court to determine if the plaintiff’s lawsuit against the event planners should proceed toward trial. Ultimately, the court concluded that the plaintiff’s case against the event planners should be dismissed because the defendants did not control the area where the accident occurred.

The Facts of the Case

According to the court’s opinion, the SXSW festival is a city-wide event with various venues across the city participating in festival activities. Thus, the event planners routinely applied for special use permits from the city to close certain city blocks. Specifically, the use permit that was obtained by the event planners stated that all “traffic controls must be provided in accordance with the approved traffic control plan.

One early morning during the festival, police attempted to pull over a motorist for a minor traffic infraction. However, the driver fled police and drove through a series of barriers and directly into a crowd of people. The plaintiffs were the surviving loved ones of a man who was killed by the drunk driver.

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funeralRecently, the Supreme Court of Florida issued a written opinion in a case rejecting a lower court’s decision to impose what appeared to be a bright-line rule regarding the available amount of damages a Florida wrongful death plaintiff is able to obtain. In so doing, the state’s high court held that the lower court failed to give the proper deference to the jury’s verdict as well as the trial court’s decision not to grant the defendant’s post-verdict motion to reduce the amount of damages awarded by the jury.

The Case

The case was brought by a woman whose mother died from lung cancer and was filed against a cigarette manufacturer. The jury determined that the plaintiff’s mother was addicted to cigarettes and that this addiction was the legal cause of her death. The jury heard evidence that the plaintiff was very close with her mother, and returned an award in favor of the plaintiff in the amount of $4.5 million.

In a post-trial motion, the defendant claimed that the damages awarded by the jury were excessive, and requested that the trial judge either reduce the damages to a reasonable amount or grant a new trial. The court denied the defendant’s motion after considering the evidence in this case and looking at jury verdicts in similar cases, noting that “nothing in the record … suggest[s] that the verdict was the product of passion and prejudice.” The defendant appealed.

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car accidentThe recovery period following a serious Florida car accident is different for everyone, but it is not an easy time for anyone. Aside from the physical trauma and emotional disturbance caused by the accident, there are the mounting medical bills, the time away from work, and the headache of dealing with insurance companies. Given these issues, it is understandable and expected that most victims of a Florida car accident are quite vulnerable for some time after the accident.

Sadly, insurance companies and savvy defense attorneys often use this time of vulnerability to approach and pressure accident victims into discussing – and potentially settling – their case. It is common to see Florida accident victims sign away the rights to pursue their case for just pennies on the dollar.

Even when the settlement agreement is a fair one, Florida car accident victims should consult with a knowledgeable attorney about the agreement’s fine print. Some settlement agreements contain unexpected language or are phrased in very broad terms that could cause problems for the accident victim if they choose to pursue a claim against other parties. A case that arose recently serves as a warning and excellent example of why it is essential to carefully read and negotiate the terms of a settlement agreement.

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police stopRecently, an appellate court in another state released an opinion in a personal injury case discussing whether a police officer, plus the city entity that employed him, could be liable for injuries arising out of a car accident allegedly caused by the officer. In the end, the court determined that because the officer’s actions did not rise to the level of “reckless disregard,” the defendants were entitled to immunity.

The case presents an interesting issue for those who have been injured in a Florida car accident that was caused by a police officer or other government employer. For starters, Florida law does not provide government immunity as it is applied in this case. However, the Florida Tort Claims Act (FTCA) provides for a relatively low total recovery amount unless the plaintiff can establish the actions of the government employee exhibited a “willful disregard for human rights or safety.”

The Facts

According to the court’s recitation of the facts, the defendant law enforcement officer received an emergency call and was en route to the scene when he was involved in an accident with the plaintiff. Both the plaintiff and the officer provided very different versions of what occurred, with the plaintiff claiming that the officer inexplicably struck her rear bumper. The plaintiff brought a personal injury claim against the police officer and the city entity that employed the officer.

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premises liabilityIn Florida, landowners are required to maintain their property in a reasonably safe condition for those whom they invite onto their land. As a general rule, a landowner must take care to either remedy all known hazards on their property or at least warn visitors of the presence of the hazard.

Importantly, a Florida slip-and-fall injury victim does not need to prove that the landowner had actual knowledge of a hazard in order to be successful. It is sufficient to establish that the landowner “should have known” about the hazard, given the surrounding circumstances. This is helpful to many Florida premises liability plaintiffs because landowners may not readily admit that they were aware of a hazard on their property.

Another wrinkle in Florida premises liability law is the state’s recreational use statute. Under Florida Statutes section 375.251, a landowner who allows their land to be used by the public for recreational purposes does not have a duty to keep the land safe or to warn those who use the land of any hazards. In order for the recreational use state to apply, the defendant cannot charge a fee for the use of their land. Additionally, the statute does not protect a landowner against “willful or malicious” conduct. However, this can be difficult to establish. A recent case illustrates a plaintiff’s attempt to establish a city’s “willful or malicious” conduct.

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medical assessmentEarlier this month, the state’s supreme court issued a very important opinion in a Florida medical malpractice case discussing under what circumstances a plaintiff’s case must be dismissed when she fails to comply with the expert opinion requirement contained in Florida Statutes section 766.102. Importantly, the court held that a plaintiff’s case should not be dismissed for lack of a qualifying expert opinion unless the defense can show that the plaintiff’s failure to comply caused prejudice to the defense.

The Facts of the Case

The plaintiff was the personal representative of a woman who died after having a complicated pregnancy that resulted in the stillbirth of her child. Pursuant to section 766.203(2), the plaintiff designated an expert witness, who was a board-certified OB/GYN.

The plaintiff’s selected expert had over 30 years of experience in the field, and had delivered over 14,000 babies. She had also served as chief of the OB-GYN department at a large medical center, and Chief of Staff at a small women’s specialty hospital. In 2005, the expert began law school, and obtained her Juris Doctorate in 2007. However, when asked, the expert stated that she “was engaged in full-time patient care until March 2008.”

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wedding mealWhen a customer consumes food prepared by a restaurant or caterer, the customer is placing a significant amount of trust in those who are preparing the food. However, in many cases each year, diners are made ill by improperly stored or prepared food. These Florida food poisoning cases are brought under the theory of product liability.

In a recent state appellate opinion, a court discussed a caterer’s potential liability in a case brought by a couple who claimed that they suffered food poisoning after consuming food prepared by the defendant caterer. Specifically, the case required the court to determine the burden a food-poisoning plaintiff has to meet to survive a defendant’s motion for summary judgment.

The Facts of the Case

The plaintiffs were wedding guests who were made ill after consuming food at the wedding rehearsal dinner. The plaintiffs filed a product liability lawsuit against the catering company, seeking compensation for the injuries they sustained. Specifically, the plaintiffs claimed that the food was “defective, pathogen-contaminated, undercooked, and negligently prepared.”

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semitruckRecently, a state appellate court issued an opinion in a personal injury case discussing the admissibility of the plaintiff’s proposed expert-witness testimony. The case raised an important issue that many Florida personal injury plaintiffs face when dealing with concepts that are beyond the scope of the common understanding of jurors and require an expert’s testimony.

The Facts of the Case

The plaintiff and her infant son were involved in an accident when a northbound semi-truck made a left in front of the plaintiff’s southbound vehicle. The plaintiff’s car crashed into the side of the semi-truck, and became wedged underneath the truck. The plaintiff filed a product liability lawsuit against the manufacturer of the trailer, arguing that her injuries were made worse by the fact that the truck did not have a side-underride guard. One of the elements the plaintiffs needed to establish to prove their case was whether there was “an alternative safer design” that was “practical under the circumstances.”

The plaintiff arranged to have two experts testify that, had the manufacturer installed telescoping side-underride guards, her vehicle would not likely have been wedged underneath the truck. While side-underride guards have existed for some time, telescoping side-underride guards have not yet been manufactured and have only been tested through computer simulations. Notably, due to the nature of the accident, the opinion of the plaintiff’s experts was that only a telescoping side-underride guard would have prevented or reduced the plaintiff’s injuries. This was due to the positioning of the truck’s rear axle at the time of the accident.

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storefrontRecently, a state appellate court issued an opinion in a Florida premise liability lawsuit discussing a landowner’s liability involving potentially hazardous conditions of the property. Specifically, the case dealt with a hazard that the court held to be “open and obvious.” The court held that because the hazard was easily observable by the plaintiff, the plaintiff was put on notice of the hazard’s existence and thus, the defendant could not be held liable for the plaintiff’s injuries.

The Facts of the Case

The plaintiff was exiting a movie theater when he left the paved sidewalk to cut through a planter box containing a large palm tree. The ground immediately around the base of the palm tree contained artificial turf and some paving bricks that had become uneven as the tree’s roots grew underneath.

As the plaintiff walked across the planter box, he tripped and fell in a divot in the ground. The plaintiff sustained serious injuries as a result of the fall and filed a premises liability lawsuit against the movie theater.

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witness testimonyIn Florida personal injury cases, the jury must make the ultimate decision as to whether the defendant’s actions caused the plaintiff’s injuries, and what, if any, damages are appropriate. In many cases, the judge will explain the legal issues involved in the case to the jury, and the jurors will then be able to use their common sense to resolve the issues. However, in some cases involving issues that are beyond the understanding of most jurors, the plaintiff may be required to present the testimony of an expert witness.

An expert witness is someone who is an expert in the specific issue raised by the case. In Florida medical malpractice cases, doctors are often used as expert witnesses. In Florida car accident cases, engineers may be called as expert witnesses. There is no hard-and-fast rule stating when an expert is necessary, but Florida law allows for an expert to be called whenever “scientific, technical, or other specialized knowledge would assist the trier of fact.” While some cases, such as Florida medical malpractice cases, require expert testimony, the decision whether to call an expert witness is normally left to the discretion of the parties.

In a recent appellate decision, the court dismissed the plaintiff’s case because she failed to present expert testimony in support of her position.

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