COVID-19 FAQs

In a recent case, the Third District Court of Appeals in Florida issued an opinion in an appeal involving a negligence and premises liability action between a plaintiff that was driving, and the defendant, a construction and engineering firm. The suit resulted from an incident where the plaintiff’s vehicle struck a protruding manhole cover while driving through Miami-Dade County. On the date of the accident, the defendant firm was performing roadwork in the area pursuant to a contract with the Florida Department of Transportation. The plaintiff subsequently brought suit against the defendant for negligence and premises liability. Following the hearing, the trial court granted the defendant’s motion for summary judgment, finding that the plaintiff failed to put forth sufficient evidence that the manhole cover he struck was located in the position he initially described it as.

During the trial, the plaintiff unequivocally testified at least three separate times during his first deposition that the manhole cover was located on West Flagler Street between 16th Avenue and 17th Avenue. During discovery, the plaintiff also produced close-up photographs of the manhole cover, testifying that he took the photographs some time after the accident occurred, though he could not remember exactly when. The photographs depict a manhole cover with a “W” in the center and several white striped circles around the “W.” The plaintiff also testified that he was unsure which of the two westbound lanes he was traveling in when he struck the manhole.

In a second deposition nearly two months later, when the defense counsel presented the plaintiff with a Google Earth photograph of the area where the incident occurred, the plaintiff identified the manhole cover in the right lane as the one he believed was involved in the accident. The manhole cover identified by the plaintiff had dots embedded across the cover and the word “sewer” displayed on it. The Google Earth photograph also showed a water main manhole cover in the left lane with a “W” in a box in the center. The defendant moved for summary judgment arguing that it was not liable to the plaintiff because the manhole cover identified by the plaintiff was different than the one depicted in the close-up photographs taken by him. The plaintiff argued that there was a genuine issue of material fact, precluding summary judgment. Following a hearing, the trial court granted summary judgment to the defendant.

Miami consistently ranks highly on the list of Florida cities with the most car accidents and crashes each year. This past year, Miami had more car crashes than anywhere else in the state of Florida. In a particularly concerning trend, fatal crashes in Miami have risen 14% between 2014 and 2021. One of the most accurate ways to measure the risks of fatal car accidents given disparities in populations of states is to measure deaths per 100 million miles traveled in a state. According to the Insurance Institute for Highway Safety, Florida has a rate of 1.60 deaths per 100 million miles traveled, placing Florida behind only a handful of other states when it comes to the risk of drivers and passengers being killed in crashes. According to the Florida Department of Highway Safety and Motor Vehicles, roughly 40% of all car accidents in Florida result in injuries.

It would serve Florida drivers and passengers well to know what factors can be used when calculating pain and suffering damages following a car accident. These factors include things such as recovery time, the severity of the injury, pain level, type of injury, and magnitude of the crash. These elements are weighed together to help deduce what the appropriate level of compensation should be granted in court following an automobile crash. A recent news article discussed a fatal three-car crash in Miami-Dade County from earlier this month.

According to the news article, the accident occurred when a fender bender between two vehicles escalated with a third vehicle striking the two other cars. The accident occurred overnight in West Miami-Dade County, with Florida Highway Patrol troopers and Miami-Dade Fire Rescue units responding to the scene of the crash around Southwest Eighth Street and 92nd Avenue just before 12:10 a.m. Police investigators stated that the crash began as a non-fatal fender bender that turned much more serious when a third vehicle struck the rear area of the other two vehicles and several pedestrians. Officials said that one person died at the scene. Three others were injured in the crash, with one person hospitalized. Officials said that the investigation into the crash was ongoing.

Florida consistently ranks highly on the list of states with the most traffic accidents each year. Specifically, one of the most accurate ways to measure risks of fatal car accidents given disparities in populations of states is to measure deaths per 100 million miles traveled in a state. According to the Insurance Institute for Highway Safety, Florida has a rate of 1.60 deaths per 100 million miles traveled, placing Florida behind only a handful of other states when it comes to the risk of drivers and passengers being killed in crashes. In Florida, roughly 40% of all crashes result in injuries, but most notably, fatalities stemming from car crashes have been on the rise since 2018. In particular, highway crashes can result in a higher fatality rate. Due to the higher speed limits, accidents on the highway can have more serious implications than slower-speed crashes.

When it comes to crashes and accidents, Florida drivers and passengers should be aware of the factors that can be used to calculate pain and suffering damages after a crash. These elements include but are not limited to the type of injury, recovery time required, necessary treatment, and the severity of the accident. These different factors can help determine the value and compensation in court after an auto accident. Many of these elements are tied together, as the more serious the accident, the more likely the recovery time will be longer. A recent news article discussed a fatal Florida highway accident from earlier this month.

According to the news article, the accident occurred when a stationary tow truck parked on the inside shoulder of State Road 408 was struck by a fast-moving pickup truck. The tow truck and a Florida Highway Patrol car were both parked on the inside shoulder assisting with a single-car accident with their emergency lights activated when a pickup truck driven by a 53-year-old Groveland man, carrying a 51-year-old man from Clermont as a passenger, lost control and struck the tow truck. Both the tow truck driver and the pickup truck driver were pronounced dead at the scene, while the passenger of the pickup truck was hospitalized with minor injuries. According to the authorities, both people inside the pickup truck were wearing their seatbelts.

Florida is known for having a vibrant boating culture. Unfortunately, that boating culture has a hidden price, vessel accidents. According to reports by the Treasure Coast Newspapers, in 2021, Florida boaters experienced a total of 751 accidents, including 60 fatalities, 469 injuries, and roughly $20 million in property damage. The report states that the leading causes of the boating accidents were collisions with other vessels, accounting for 250 crashes, and collisions with fixed objects, accounting for 149 of the crashes. The report goes on to highlight that as Florida vessel registration numbers have increased every year since 2013, so have boating accidents. Causes of the crashes and accidents range from drugs, alcohol, and tricky weather conditions, to difficulties navigating unfamiliar routes.

Florida boat drivers and passengers should be aware of the laws on the books in the state when it comes to vessel accidents. In Florida, vessel homicide is defined as the killing of a human being by the operation of a vessel by another in a reckless manner likely to cause the death of, or great bodily harm to, another. Vessel homicide does not require that the person knew that the accident result in injury or death. This is a serious charge that can result in significant jail time for anyone convicted. A recent news article detailed a fatal Florida boat crash.

According to the news article, the accident occurred when a Palm City man was driving his friend’s 26-foot Caroline Composite center console motorboat through the Intercoastal in October 2019 when he crashed into a channel marker at high speed. Five of the eight people in the boat were tossed overboard. The driver’s wife and his friend’s 20-month-old daughter died in the crash. The accident occurred around 7:40 pm in the evening when the two families piled into the boat after dinner. Investigators state that the driver had several drinks with dinner prior to getting behind the wheel and deciding to take a shortcut home. Prosecutors said that it was a dark and hazy night and the boat’s GPS was not working when the driver slammed into an unlit channel marker.

In a recent case, the First District Court of Appeals in Florida issued an opinion in an appeal involving a benefits dispute between an employer and an employee. The claimant is a former emergency medical technician (EMT) that has post-traumatic stress disorder (PTSD), which the employer does not dispute. Instead, following a judgment in favor of the employer by the Judge of Compensation Claims (JCC), the employee appealed based on a differing interpretation of Florida Statute 112.1815, which refers to specific treatment in awarding benefits for first responders. The court of appeals disagreed with the JCC, ruling in favor of the claimant.

As an EMT, the employer/claimant began working for Polk County Fire Rescue in August 2015. Over the course of her employment, she witnessed multiple horrific incidents in the course of carrying out her official duties. Many of these incidents included deaths or serious injuries to women and children. In 2016, she responded to a domestic violence incident where a woman was badly beaten by her boyfriend and subsequently passed away after arriving at a hospital. Over the course of 2017, she responded to multiple fatal incidents involving very young children, one as young as three months old. Again in 2018, she saw multiple horrific and fatal incidents involving young children, including a child as young as two-years-old. By 2016, the claimant began experiencing nightmares and flashbacks, the first potential signs of PTSD. She sought assistance from her critical incidence stress management team before seeking help from a therapist beginning in early 2017. By 2018, she took a leave of absence under the Family and Medical Leave Act, as she felt that she could no longer do her job due to the trauma. Following the leave, her condition did not improve, and she never returned to work.

While filing for benefits, the JCC denied the employee’s claim for two reasons, stating (1) that as she did not have an accident on the date of her claim, she was not eligible for benefits under section 112.1815, and (2) that her substantive rights for claims were fixed as of the last “qualifying event” she experienced on the job. The appeals court opinion addresses both parts of the JCC argument, disagreeing with the analysis. On the first issue, the appeals court found that due to the nature of the claimant’s disability, the date or dates that she suffered exposure to the disease was not relevant to determine the date of the accidents in the context of this case. On the second issue, the appeals court ruled that the JCC misinterpreted the issue of timing, stating that there was an imputed contractual entitlement to compensation for financial loss as a result of her occupational disease regardless of the date in this case.

In a recent case, the Fourth District Court of Appeals in Florida issued an opinion in an appeal involving a product liability case between a plaintiff that purchased a motorcycle, and the defendant, a motorsports dealer. The plaintiff was injured riding the motorcycle shortly after purchasing it when the motorcycle spun out of control. He brought suit against the defendant for negligence during the assembly and servicing process as well as in a product liability capacity. Following the hearing, the trial court granted the defendant’s motion to dismiss the plaintiff’s entire lawsuit based on an exculpatory clause contained within the sales contract that he signed when purchasing the motorcycle.

In 2018, the plaintiff purchased a Suzuki brand motorcycle from the defendant, signing a sales contract containing exculpatory language releasing the defendant dealer from liability. Shortly after buying the motorcycle, the plaintiff was involved in a serious accident and sustained serious bodily injuries. According to the plaintiff, as he was riding it, the front end of the motorcycle began to wobble and thrash, causing him to lose control and crash into another motor vehicle. Following the accident, he sued the defendant, claiming the dealer was negligent in assembling, setting up, servicing, repairing, and or inspecting the motorcycle prior to the sale. Additionally, the plaintiff sued the defendant in its capacity as a seller in the stream of commerce for strict product liability and negligent product liability arising out of manufacturing defects, design defects, and the failure to warn of those defects. At trial, the defendant moved to dismiss the defendant’s complaint based on the exculpatory clause he signed during the purchase. The plaintiff filed a response opposing the dismissal. The trial court subsequently granted the defendant’s motion and dismissed the plaintiff’s entire suit with prejudice based on the exculpatory clause.

On appeal, the plaintiff argues the trial court erred by dismissing the strict product liability counts because the exculpatory clause, due to its plain language, only applied to negligence-based claims. In the appellate court opinion, the appeals court found that much like the public policy driving Florida’s regulation behind licensing of building contractors and building construction standards, the public policy behind adopting the theory of strict liability is rooted in the concept of protecting the safety of consumers. As a result, the exculpatory clause, in this case, purporting to absolve a retailer of liability from strict liability in tort for injuries caused by defects in products it places on the market likewise violates public policy. As a result, the appellate court reversed the portion of the order dismissing the three strict product liability counts.

In a recent case, the First District Court of Appeals in Florida issued an opinion in an appeal involving a benefits dispute between an employer and an employee. The claimant has hypertension which was previously adjudicated as compensable. Following that adjudication, he filed a petition for benefits seeking payments of impairment benefits for hypertension. The Judge of Compensation Claims (JCC) issued an order granting the claimant’s claims for impairment benefits, attorney’s fees, and costs. The employer appealed the JCC decision.

The claimant’s hypertension was assigned a 10% permanent impairment rating by his authorized treating physician. The claimant’s independent medical examiner assigned a 50% permanent impairment rating. And the employer’s independent medical examiner assigned a 0% permanent impairment rating based on the claimant’s hypertension. Due to the conflicting medical evidence provided, the JCC appointed an expert medical advisor. The employer objected to the use of the expert medical advisor, asserting that no conflict in medical evidence existed. The JCC disagreed, reasoning that even if they accepted the employer’s argument that a conflict existed between the permanent impairment ratings of the claimant’s and the employer’s independent medical examiners. The expert medical advisor concluded that the claimant reached a 42% permanent impairment rating. The employer then appealed the decision.

The employer argued that the JCC was not correct to appoint an expert medical advisor in the first place and even if they were, whether the opinion offered by the expert medical advisor was proper. The employer states that the JCC erred in appointing the expert medical advisor as there was no initial disagreement in the opinions of the health care providers. Additionally, they contended that the JCC failed to address the employer’s objections to the expert medical advisor’s opinion. Finally, they object to the manner in which the expert medical advisor performed his assessment.

In a recent case, the Second District Court of Appeals in Florida issued an opinion in an appeal involving a dispute between a patron, Marvel Martin, and a restaurant, Columbia Food Service. Mrs. Martin tripped on a hexagonal piece of pavement immediately outside of the restaurant doors and contends that Columbia Restaurant was responsible for maintaining the sidewalk. Specifically, Mrs. Martin contends that Columbia had joint and shared responsibility with the City of Tampa for the pavers located around the Restaurant. Stating that Columbia Restaurant had actual possession and control of the sidewalk and therefore assumed the duty to keep it free from dangerous conditions. They further state that Columbia Restaurant’s duty extends beyond the confines of the Restaurant because it invited customers to use that sidewalk for entrance and exit to the location.

On May 21, 2017, Mrs. Martin was having lunch with her sister at the Columbia Restaurant. As she was leaving, she tripped on an uneven hexagonal paver located directly beneath the awning that the Columbia Restaurant owns and maintains. The awning is attached to the Restaurant and is supported by pillars affixed above the sidewalk. The City of Tampa permits Columbia Restaurant to erect the awning, but the agreement makes no mention of the sidewalk. Columbia Restaurant has porters check the sidewalk for debris each morning, and each week, the porters power-wash the sidewalk and parking lot. Based on these facts, the trial court granted summary judgment in Columbia Restaurant’s favor.

Mrs. Martin appeals, stating that Columbia Restaurant has joint and shared responsibility with the City of Tampa for maintaining the sidewalk and that the Restaurant has actual possession and control of the sidewalk, making it their responsibility to keep it free of dangerous conditions. Additionally, Mrs. Martin contends that it is Columbia Restaurant’s duty extends beyond the confines of the Restaurant as it invites customers to use the sidewalk for ingress and egress.

Recently, the First District Court of Appeals in Florida issued an opinion in an appeal involving a workers’ compensation claim dispute. The claimant initially filed a Petition for Benefits (PFB) with the Division of Administrative Hearings (DOAH) in the Office of the Judges of Compensation Claims (JCC) requesting medical and indemnity benefits. The employer responded that the JCC had no jurisdiction over the PFB filed because both parties were bound by a collective bargaining agreement (CBA) that compelled a resolution of claims via arbitration.

Subsequently, the claimant voluntarily dismissed the PFB and filed a request for arbitration as required under the CBA binding the two parties. The arbitration hearing denied all benefits sought by the claimant. Shortly thereafter the claimant filed a motion for a rehearing with the arbitrator that was promptly denied. The claimant then filed a motion with the DOAH to dismiss the arbitration determination. The employer responded that the JCC lacked jurisdiction in this matter. Ultimately, the JCC determined that there was jurisdiction and vacated the arbitrator’s determination, and ordered a rehearing with the same arbitrator subject to the arbitrator’s willingness and availability. The employer then appealed the decision by the JCC.

The court of appeals found that there was no PFB pending before the JCC when the claimant filed the motion to vacate. While the claimant initially filed a PFB, he voluntarily dismissed it and proceeded to arbitration as required by the binding CBA. The dismissal of the PFB removes the jurisdiction of the JCC in this case. The appeals court notes that it had previously held that JCC does not have general jurisdiction and can only address issues specifically conferred by statute. When all claims asserted through a petition for benefits are dismissed, the JCC loses jurisdiction to address those claims. Here, the appeals court found that the claimant filed his PFB before voluntarily dismissing it and conceded to the CBA-mandated arbitration process. It was only once he was denied benefits through the arbitration hearing and dissatisfied with the results that he filed a motion to vacate the arbitration award with the JCC, which was ultimately an inappropriate forum that lacked jurisdiction. Ultimately, the proper course of action remaining to the claimant was to seek relief through a court with appropriate jurisdiction as defined by section 682.

Recently, the First District Court of Appeals in Florida issued an opinion in an appeal involving a workers’ compensation claim from a worker serving as a laundry attendant at a hotel who claimed to suffer a back injury lifting a mattress. According to the record, the attendant stated that he injured his back on May 22, 2019, while lifting and carrying mattresses to different rooms within the hotel. The attendant made several visits to the emergency room over the next few months, stating that he was experiencing stretching and tingling feeling on his side. His employers claim that the hospital visit records do not show a clear connection to the back or neck injury that the attendant states were due to his job. Additionally, the employer states that the attendant failed to file the claim in time.

The judge of compensation claims (JCC) denied the attendant’s claim and dismissed the petition, reasoning that the attendant’s evidence was insufficient for the claim. Both the attendant and the employer appealed the decision, with the attendant contending that the denial should be set aside for various reasons and the employer claiming that the merits of the claim should not have been heard in the first place due to the fact that the attendant did not give notice to the employer in a timely manner.

The Facts of the Case

According to the record, after the attendant claimed to be injured on May 22, 2019, he visited the emergency room on five separate occasions due to potential dehydration, tingling, and a stretching feeling on his side. In the first four of these instances, no mention of potential back or neck issues was noted in the official visit notes, and the attendant himself frequently mentioned dehydration as a potential cause for his issues, noting he was sleeping without an air conditioner. In the final visit on July 17, 2019, the attendant complained of “body aches” and in his discharge instructions, there is a mention of the phrase “cervical sprain.” A few days later, the attendant contacts the employer to file a claim.

Continue Reading ›

Contact Information