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Under Florida Statutes section 766.106, Florida medical malpractice plaintiffs must comply with certain additional procedural requirements. For example, a Florida medical malpractice plaintiff must provide pre-suit notice to the defendants, including a list of all of their medical providers for the two-year period prior to the incident as well as all providers seen subsequent to the incident. In addition, medical malpractice plaintiffs are subject to a shorter statute of limitations and must also present an expert affidavit in support of their claim.hospital

These additional requirements, while burdensome, may not seem like an insurmountable hurdle. However, in reality, defendants often attempt to raise a plaintiff’s failure to comply with the additional requirements as a defense after the lawsuit has been filed. Thus, a defendant may be successful in barring a plaintiff’s ability to recover damages by establishing that the plaintiff failed to comply, and by that point, it may be too late because the statute of limitations has expired.

Thus, the determination of whether a case is one of traditional negligence or medical malpractice is an important one. In a recent case, a state appellate court issued an opinion discussing the distinction between the two types of cases and which types of cases are likely to be considered ones involving claims of medical malpractice.

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In Florida slip-and-fall lawsuits, the plaintiff must present some evidence that the defendant landowner knew of the hazard and failed to take action. Courts, however, do not necessarily require plaintiffs to present evidence of a defendant’s actual knowledge. In some cases, a plaintiff may be able to meet their burden by establishing that the defendant had constructive knowledge of the hazard.plaza

Under Florida Statute section 768.0755, constructive knowledge can be established by circumstantial evidence in one of two ways:

  • The condition was present for such a length of time that the business should have known of its existence; or
  • The condition occurred frequently.

The type of evidence required to prove constructive knowledge varies depending on the surrounding circumstances. And as a recent case illustrates, establishing a defendant’s constructive knowledge may not be as simple as it initially seems.

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Although less common than years ago, Florida train accidents still injure a significant number of people each year. In fact, according to the most recent government statistics, there have already been roughly 350 fatalities due to train accidents so far this year.coffin

Railroad companies have a duty to ensure that they operate safely. This means that they must ensure that the train and tracks are in good condition, that crossings are well-marked and free of visual obstructions, and that train operators do what they can to avoid accidents. In a recent wrongful death case, a court affirmed a jury verdict in the amount of $10.7 million, based on a railroad company’s failure to take the necessary precautions to avoid an accident.

The Facts of the Case

The plaintiff’s husband and a friend were traveling across a set of railroad tracks when, unbeknownst to them, a train was immediately approaching. The train collided with the vehicle, which was being driven by the plaintiff’s husband, causing it to flip upside down. Both the plaintiff’s husband and the passenger were ejected. The plaintiff’s husband died as a result of the injuries he sustained in the accident. The passenger survived, although he suffered serious injuries.

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In a recent appellate opinion, a court determined that a restaurant may have a duty to take some kind of action to control the population of venomous spiders on the premises. The case presents an interesting issue for potential Florida premises liability plaintiffs because it illustrates the extent of the duty that a business owes its customers.restaurant

The Facts of the Case

The plaintiff and a friend decided to have lunch on the patio of the defendant restaurant. Prior to eating, the plaintiff removed her over shirt and set it down beside her. After the two had finished lunch, the plaintiff put the shirt back on. As soon as the plaintiff’s shirt was back on, she felt a sharp pain in her shoulder. She told her friend that she thought something had bitten her.

Not thinking that anything was seriously wrong, the plaintiff went home. However, the next day, she woke up completely numb and unable to move her arms or legs. She managed to call for help using her nose, and she was ultimately admitted to the hospital, where she stayed for six days.

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parking lotThe ultimate question in Florida premises liability lawsuits is whether the defendant landowner was negligent in the maintenance of their property. In order to determine if a landowner is legally negligent, courts consider a variety of factors, including the relationship between the parties, the level of duty the defendant owed to the plaintiff, the type of hazard that caused the plaintiff’s injuries, whether the defendant knew or should have known about the hazard, and whether the hazard was obvious to the plaintiff.

Each of these factors can come into play when a court is determining if the defendant landowner was negligent. In Florida, even if a plaintiff shares in the fault, the case will proceed to trial so long as the evidence suggests that defendant was also negligent.

That being said, plaintiffs have the burden to establish that their case is sufficient as a matter of law before the case is sent to a jury for resolution. In order to meet this burden, a plaintiff must present evidence of each element of their claim. If a plaintiff cannot prevail at a trial based on a lack of evidence regarding a required element, then the court will dismiss the plaintiff’s case. A recent case illustrates one plaintiff’s unsuccessful attempt to establish her case against a fast-food restaurant.

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arbitrationRecently, a state appellate court issued an opinion in a Florida nursing home negligence lawsuit requiring the court to determine if the plaintiff’s case was properly brought in court or if she was required to submit the case to arbitration. Ultimately, the court concluded that while there was one clause in the agreement that was unenforceable, the agreement as a whole should be upheld. Thus, the plaintiff was still required to submit her case through arbitration.

The Facts

The plaintiff was the estate of a woman who died while in the care of the defendant nursing home. Prior to the woman’s admission into the nursing home, she executed an arbitration agreement. Essentially, the agreement waived her right to pursue a claim against the nursing home in a court of law, favoring resolution of any claims through the arbitration process.

After the woman died, the estate filed a personal injury lawsuit against the nursing home, claiming that the arbitration agreement the woman had signed was unenforceable because while the agreement stipulated that Florida substantive law would be applied at the arbitration proceedings, it also stipulated that Alabama rules of evidence and procedural rules would apply.

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Recently, an appellate court issued an opinion in a car accident case that raised an interesting issue that frequently comes up in Florida car accident cases. The case involved an accident between an employee who was on his way home from work and the plaintiff. The plaintiff attempted to hold the employee’s employer liable for his injuries under the theory of vicarious liability. However, the court rejected the plaintiff’s claim based on the “coming-and-going” rule.

Pedestrian AccidentThe Facts of the Case

The plaintiff was walking along the sidewalk when he was struck by a vehicle that had just been hit by another car that was being driven by a county public defender (the “employee”). The employee was on his way home from work at the time of the accident.

The employee worked for the county, which did not officially require that the employee have his own car. However, the employee’s job required that he go to numerous courthouses, visit clients in prison, and go to crime scenes in various cities.  Thus, essentially, the job would not be possible without a car.

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Nursing homes have come under fire over the past few years for the manner in which they get residents and their families to give up their right to pursue a case against the nursing home in court. Often, these arbitration clauses are, at best, written in small text hidden among countless other pages of documents or, at worst, presented to residents in a take-it-or-leave it fashion, such that if they refuse to sign their application will be rejected.

Signed ContractAn arbitration clause is not so much about what a nursing home resident is getting, but about what they give up. Under the U.S. Constitution, everyone has the right to access the court system to resolve grievances; however, that right can be waived through an explicit agreement to arbitrate all claims instead of using the court system. One of the problems with arbitration, however, is that it often puts a nursing home at an unfair advantage.

Thus, government agencies and watch-dog groups have been advocating for nursing homes to do away with arbitration clauses in their pre-admission paperwork. These are often presented to a potential resident or their family in a time of desperation, when the consequences of waiving their rights may not be fully realized. Notwithstanding that fact, nursing homes continue to include arbitration clauses in their pre-admission paperwork, although few have the gall to deny a resident admission if they refuse to sign it. Instead, nursing homes are relying on a resident not fully understanding what it is they are signing or simply overlooking the clause altogether.

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Earlier last month, video of a serious Florida car accident occurring at a toll booth spread across the internet, with most viewers surprised by the fact that no one involved in the accident was killed. According to a local news report, the accident occurred on the Florida Turnpike, near St. Cloud in Osceola County, in one of the road’s several pay booths.

Truck on HighwayThe video shows a white sport-utility vehicle traveling toward the toll booth at what seems like full-speed. As the SUV approaches the booth, it does not slow down, takes out several of the warning cones placed in front of the booth, and collides head-on with the cement barrier that divides two of the toll booths.

After the initial collision, the car is thrown upward into the air as it catches fire. However, immediately after impact, one of the passengers in the car was catapulted through the front windshield of the vehicle onto the pavement some 60 feet away from where the accident occurred. The video, which may be too graphic for some viewers, shows the passenger’s head narrowly miss several obstacles before coming to a rest against one of the toll booths.

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Recently, a state appellate court issued a written opinion in a Florida premises liability case requiring the court to determine if the plaintiff presented sufficient evidence to survive a defense motion for summary judgment. Although the trial court granted the defendant’s motion, finding that the plaintiff presented insufficient evidence that the defendant was aware of the hazard that caused his fall, the appellate court reversed the lower court’s decision based on the plaintiff’s own testimony.

Store ShelvesSummary Judgment

Summary judgment is a stage in many Florida personal injury cases in which one or both parties ask the judge to rule in their favor prior to trial. A judge will grant a party’s motion for summary judgment only when there are no contested issues of fact and, after considering the uncontested evidence, the moving party is entitled to judgment as a matter of law. Essentially this means that after taking into account the uncontested evidence, the non-moving party would not be able to prevail at trial.

The Facts of the Case

The plaintiff was seriously injured when a heavy object fell and struck him in the back of the leg while he was shopping in the defendant hardware store. After the accident, the plaintiff was told by an employee that the object that hit him was a trailer hitch that had fallen from high up on the shelf. The plaintiff testified that after the accident, he saw employees stacking trailer hitches high up on the shelves.

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