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An important consideration in any Florida personal injury case is whether a plaintiff will be able to collect on a judgment if they are successful at trial. For example, the financial and emotional expense of taking a case to trial against a defendant who does not have sufficient assets to cover a judgment may not make sense. Thus, it is essential that Florida personal injury victims name all potentially liable parties.

In many cases, this means naming the employer of the at-fault party as a defendant. Generally speaking, employers have more substantial assets than employees, and they may also have higher-limit insurance policies making collecting on a judgment much less of a headache for a successful plaintiff.

In Florida, an employer may be liable for the negligent acts of an employee, even if the employer was not negligent in causing the accident. This is referred to as vicarious liability. Of course, employers cannot be named in every Florida personal injury accident. In Florida, to establish that an employer is liable for the negligent acts of an employee, the plaintiff must show that the at-fault employee was acting within the scope of his employment at the time of the accident and that he was “engaged in his master’s business.” A recent state appellate decision illustrates how courts view vicarious liability claims.

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Recently, a state appellate court issued a written opinion in a Florida product liability case discussing whether the State of Florida had personal jurisdiction over the defendant, a company that mined and processed talc that was included in products manufactured by other companies.

What Is Jurisdiction?

The term jurisdiction refers to a court’s power to hear a case and issue a binding judgment over the parties involved. By filing a lawsuit in a particular state, the plaintiff consents to that state’s jurisdiction. Thus, when jurisdiction is challenged it is challenged by a defendant who claims that the state where the plaintiff chose to file the case does not have power over the defendant.

The Facts of the Case

According to the court’s opinion, the plaintiff filed a Florida product liability case against several defendants based on the plaintiff’s use of Johnson & Johnson talc-based baby powder. Among the defendants named in the plaintiff’s lawsuit were Johnson & Johnson, the grocery store where the plaintiff purchased the powder, and the manufacturing company that provided Johnson & Johnson with the talc that was used to make the product. This opinion involved only the manufacturing company.

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Bringing a successful Florida personal injury lawsuit often requires more than just proving that the defendant was responsible for the plaintiff’s injuries. In fact, there is a significant amount of thought that must go into a case before the case is even filed. One concept that can cause a Florida injury victim’s claim to run aground early in the process is jurisdiction.

Jurisdiction refers to a court’s power to hear a case. There are two types of jurisdiction. Subject-matter jurisdiction refers to the court’s ability to hear a certain kind of case and personal jurisdiction refers to the court’s ability to issue judgment over a specific defendant. Most Florida state courts are of general jurisdiction, meaning they can hear a variety of cases, including Florida personal injury cases.

A state always has jurisdiction over those who are domiciled in that state. However, establishing personal jurisdiction in a Florida personal injury lawsuit involving an out-of-state defendant can be tricky, depending on the type of claim. In these cases, the burden is on the plaintiff to show that the court has jurisdiction.

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One of the most common concerns among Florida personal injury victims is when they must file their claim. Typically, all personal injury claims must be brought within a certain amount of time, which is outlined in the statute of limitations. However, the rules differ when cases name state or federal government entities. Recently, a federal appellate issued a written opinion discussing whether a claim brought under the Federal Tort Claims Act is tolled while the plaintiff is a minor.

The Accident

According to the court’s opinion, when the plaintiff was five years old, his father was killed in a car accident on an interstate highway. The plaintiff’s mother filed a timely administrative claim with the Federal Highway Administration (FHWA) claiming that a highway barrier that had failed during the accident was not adequately tested or approved for use. Five years after the accident, and while the plaintiff was still a minor, the plaintiff’s mother filed a personal injury case against the FHWA in federal district court on behalf of the plaintiff.

The Federal Tort Claims Act

Generally, the federal and state governments are immune from tort liability. However, under the Federal Tort Claims Act (FTCA), specific lawsuits can be brought against the U.S. government and its subdivisions. To bring such a lawsuit, plaintiffs must comply with strict procedural requirements. Among these requirements is a two-year statute of limitations.

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While Florida landowners generally owe a duty to keep their property safe and to warn visitors of any dangerous conditions on their land, Florida lawmakers have created an exception in the state’s recreational use statute. The Florida recreational use statute was passed “to encourage persons to make available to the public land, water areas and park areas for outdoor recreational purposes by limiting their liability.”

Thus, under Florida statutes section 375.251, a landowner who allows the public to use their property for recreational purposes “owes no duty of care to keep that park area or land safe for entry or use by others, or to give warning to persons entering or going on that park area or land of any hazardous conditions, structures, or activities thereon.” However, the recreational use statute only applies if the landowner derives no commercial benefit from the use of their property.

There are limits to the protection that the recreational use statute provides to landowners, however. For example, the statute does not protect against the “deliberate, willful or malicious injury to persons or property.” A recent federal appellate case illustrates the type of scenario where the recreational use statute may not apply.

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All Florida personal injury cases must be brought within a certain amount of time. Florida Statutes section 95.11 provides the statutes of limitations for each cause of action. For example, most personal injury lawsuits alleging negligence must be brought within four years; however, Florida medical malpractice lawsuits must be brought within two years.

It is essential that a plaintiff is aware of the applicable statute of limitations in their case, so they know how long they have to bring their case. However, determining when a statute of limitations begins to run can be tricky. For example, the statute of limitations in a Florida medical malpractice lawsuit begins when the “incident was discovered, or should have been discovered with the exercise of due diligence.”

Recently, a federal appellate court issued an opinion interpreting a similar statute of limitations regarding a lawsuit brought against a prescription drug manufacturer.

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As a general matter, all property owners have an affirmative duty to protect those whom they invite onto their property, and many – if not most – Florida premises liability cases arise based on this type of relationship. However, landowners also owe a duty to protect trespassers in certain circumstances.

Under Florida Statutes section 768.075, the general rule is that landowners do not owe a duty of care to any trespassers who come onto their property. However, the statute also provides several situations where a landowner can be liable for even a trespasser’s injuries. For example, a landowner must “refrain from intentional misconduct that proximately causes injury to the undiscovered trespasser.” While this is an uncommon scenario, a far more typical case of landowner liability is under the attractive nuisance doctrine.

The Attractive Nuisance Doctrine

While section 768.075 clearly states that a landowner does not owe a duty to trespassers in most situations, the statute also notes that it “shall not be interpreted or construed to alter the common law as it pertains to the attractive nuisance doctrine.” The attractive nuisance doctrine is an old common-law doctrine that allows for a landowner to be held liable for a child’s injuries if the child was injured by an object or feature on the defendant’s land that is likely to attract children. A classic example of an attractive nuisance is a swimming pool.

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Earlier this year, a state appellate court issued a written opinion in a Florida medical malpractice case requiring the court to determine whether the plaintiff’s three expert affidavits were sufficient to comply with the requirements of Florida Statutes 766.102 outlining the expert affidavit requirement.

Florida’s Expert Affidavit Requirement

Under Florida law, a plaintiff bringing a Florida medical malpractice claim must conduct a pre-suit investigation to “ascertain whether there are reasonable grounds to believe that the defendant medical provider was negligent, and that the negligence resulted in injury to the claimant.” In addition, a plaintiff must obtain an expert affidavit from a qualified expert stating that the expert has reviewed the plaintiff’s case, and that it has merit.

The Facts of the Case

According to the court’s opinion, the defendant orthopedic surgeon performed a hip-replacement surgery on the defendant. During the operation, the defendant fractured the plaintiff’s hip. The plaintiff filed a Florida medical malpractice claim against the orthopedic surgeon. In support of her claim, the plaintiff presented three expert witness affidavits from an emergency room physician, a radiologist, and a nurse.

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Nobody plays a sport with the intention of getting hurt, yet each year there are thousands of Florida sports injuries. Most are minor, but some can be quite serious. As a general matter, anyone who is injured while playing a sport can pursue a claim for compensation against the parties they believe to be responsible for their injuries. However, it is important for Florida sports accident victims to understand the doctrine of assumption of the risk.

The Assumption of the Risk

Most sports present some risk of injury. Under the assumption of the risk doctrine, plaintiffs who willingly take on known risks and participate in sporting events may be partially liable for any injuries they sustain. In Florida, this is called implied assumption of the risk.

In Florida, there is also the doctrine of express assumption of the risk, which can completely preclude an accident victim from recovering for their injuries. However, Florida courts limit the application of express assumption of the risk to cases involving express agreements not to sue and cases involving contact sports. A recent state appellate opinion discusses assumption of the risk in the context of a skiing accident. While the case arose in another jurisdiction, the court’s reasoning is illustrative of why express assumption of the risk is rare in Florida sports injury cases.

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Earlier this month, a state appellate court issued a written opinion in a Florida premises liability lawsuit discussing whether the plaintiff’s case should be able to proceed toward trial despite the fact that the hazard causing her fall was open and obvious. The court concluded that, despite the obvious nature of the hazard, the defendant condo association was not relieved from repairing the known hazard. Thus, the court held that while the plaintiff could not proceed with a failure-to-warn claim against the defendant, her claim based on negligent maintenance of the property.

The Plaintiff’s Injuries

As the court explained the facts in its opinion, the plaintiff owned property in the defendant condo association and had lived there for the past 15 years. One day, the plaintiff was walking on the sidewalk in an area where she regularly traveled when she tripped on an unlevel sidewalk. The plaintiff sustained serious injuries as a result of the fall and filed a Florida personal injury case naming the condo association as a defendant.

In a pre-trial motion for summary judgment, the condo association argued that the unlevel sidewalk was an open and obvious hazard and because of that, the plaintiff could not recover for her injuries. The trial court agreed, finding that as a matter of law, uneven pavement is considered an open and obvious hazard, and dismissed the plaintiff’s case. The plaintiff filed an appeal.

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