Articles Posted in Personal Injury

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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.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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The 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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Recently, a state appellate court issued a written opinion in a Florida pedestrian accident case involving the duty a defendant employer owes to a plaintiff employee. The case presented the court with the opportunity to discuss the outer limits of an employer’s duty to protect an employee. Ultimately, the court concluded that the defendant employer owed no duty to the employee, and thus, could not be held liable for her death.

The Facts of the Case

The plaintiff worked for the defendant employer, a financial services firm. The defendant maintained a bar on-site to encourage employees to socialize and stay at work longer than they may otherwise have chosen to. One day, the plaintiff visited the defendant’s bar after work. After a few drinks, the plaintiff began to get agitated at other employees, and she was eventually told to leave and subsequently escorted out. Her access into the building was revoked.

The plaintiff then began to walk toward her home, which was ten miles away. She was walking along a set of railroad tracks when she was struck by an oncoming train. She was killed instantly.

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When someone is injured due to the negligent actions of another party, the injured party may pursue compensation for their injuries through a Florida personal injury lawsuit. As a general matter, all lawsuits based on some type of injury must be filed by a certain time afterward, usually based on the time at which the injury occurred. These time requirements are outlined in the statutes of limitations.In Florida, the statutes of limitations for each cause of action are listed in Florida Statutes section 95.11. As a general matter, the statute of limitations for Florida personal injury lawsuits is four years. The statute of limitations for Florida medical malpractice lawsuits is two years. Of course, there are exceptions to these general rules.

The determination of when a statute of limitations expires is an important one in many Florida personal injury lawsuits. Thus, establishing when the statute begins is very important. As noted above, most of the time, the statute of limitations begins to run at the time the injury occurs. However, in instances in which an injury is not discovered until later, in which the plaintiff is a minor, or in which fraud or deception is involved, the statute of limitations may begin at a later date.

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Recently, a state appellate court issued a written opinion dismissing a plaintiff’s complaint against the defendant, based on the fact that the plaintiff concealed prior injuries that he had suffered. The case is important for Florida car accident victims because it illustrates the importance of being truthful in all statements to the court.

The Facts of the Case

The plaintiff was involved in an accident that he alleged was caused by the defendant. After the accident, the plaintiff claimed that he suffered injuries to his head, lower back, and shoulder. The plaintiff filed a personal injury lawsuit against the defendant, seeking compensation for his injuries.

The case proceeded to the discovery phase, at which the parties were to exchange relevant requested information. As a part of discovery, the plaintiff was asked about his prior medical conditions in a set of written questions. In these questions, the plaintiff indicated that he had no prior back, neck, or shoulder injuries. However, when the defendant asked the plaintiff to sign a release to obtain his medical records, the plaintiff refused.

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In some Florida personal injury lawsuits, the defendant can claim that the plaintiff should not be able to pursue a claim for compensation based on the fact that the plaintiff assumed the risks involved in participating in the activity that ultimately caused their injuries. This type of defense is common in cases involving skiing, sky diving, jet-skiing, and bungee jumping.In Florida, there are two types of assumption of the risk:  express and implied. Express assumption of the risk generally involves a party’s acknowledgement of the risks involved prior to participating in the activity, usually through a release waiver or some other contract. Implied assumption of the risk, however, does not require a signed release waiver, and it can be established through risks that were either known at the time or should have been known.

A recent case illustrates how one federal court of appeals applied the assumption of the risk doctrine to preclude an accident victim’s ability to recover compensation for his injuries.

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Florida is known for its picturesque terrain and numerous options for outdoor recreational activities. Some common activities are water sports, horseback riding, hot air ballooning, hiking, and biking. Although these activities are often advertised as “guided” and “safe,” there are always some inherent risks involved in participating in them. Prior to participating in one of these activities, companies that provide these experiences will almost always have the patron sign a waiver of liability in the event that an accident does occur.

Liability Waivers in Florida

Although Florida recreation companies cannot waive away all of their liability, there is a fair amount that they can avoid. Florida has various statutes that limit the applicability of waivers for specific activities, but this does not apply to all activities. These waivers essentially require the patron to affirm that they are aware of the risks involved in participating in the specific activity for which they are signing up.

Inherent risks are generally considered those that are common to the activity in which one is participating. For example, an inherent risk of horseback riding session would likely be falling off the horse.

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Psychological trauma can be devastating, whether it stems from being involved in a Florida car accident or witnessing a loved one suffer serious injuries themselves. Unfortunately, the legal field has been slow to come around to the idea that psychological trauma can have a lasting impact on those who suffer from it. However, with research in this area of medicine continuing to evolve, courts are beginning to accept the concept that witnessing a traumatic event can cause serious harm to an individual.Thus, in 1995, the Florida Supreme Court clearly outlined the elements of a relatively new cause of action called negligent infliction of emotional distress (NIED). An NIED claim is based on the physical injuries sustained by witnessing a very traumatic event. In the 1995 case referenced above, the court set forth the following requirements for an NIED claim:

  1. The plaintiff must suffer some physical injury;
  2. Which was a result of a psychological trauma;
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When a jury renders a verdict in a Florida car accident case, the jury’s decision regarding the defendant’s liability to the plaintiff is generally insulated from review, absent extraordinary circumstances. However, once the jury returns a verdict in favor of the plaintiff, the award amount that the jury reaches can be subject to a judge’s review under certain circumstances.Under Florida Statute section 768.74, a party can request a judge to review the jury’s award amount and ask that it be increased or decreased. If the judge agrees with the requesting party, the judge will order an additur (an increase) or a remittur (a decrease) in the award amount. Then, the party that requested the additur or remittur has the choice of accepting the revised award amount, or, if they believe the result to still be unsatisfactory, a new trial on the issue of damages will be ordered.

When a party asks a judge to order an additur or remittur, the judge will consider certain factors, which are outlined in section 768.74. Essentially, the judge will determine if the award was a product of “prejudice, passion, or corruption,” whether the jury considered evidence it should not have, and whether the award amount was supported by the evidence. A recent case illustrates a situation in which the judge agreed with a plaintiff that a jury’s award amount was insufficient.

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Earlier this month, an appellate court issued a written opinion in a Florida personal injury case involving a claim brought by a plaintiff who suffered worsening symptoms of a pre-existing condition after being treated by the defendant aesthetician. The case required the court to determine if the defendant’s expert witness was properly prohibited from testifying, and whether the plaintiff was entitled to judgment as a matter of law. Finding that the lower court did not err, the court affirmed the verdict.

The Facts of the Case

The plaintiff, who suffered from mild rosacea, arranged to have a chemical peel at the defendant spa. The plaintiff noted on her intake form that she had rosacea, but the defendant aesthetician failed to read the form prior to beginning the procedure. The defendant admitted that, had she read the form, she would not have performed the procedure or would have conducted a test on a small area of skin first.

After the chemical peel, the plaintiff’s skin began to scar, and her rosacea was significantly worsened. The plaintiff saw several doctors and took medication as prescribed to improve her condition, but in the end, the doctors recommended laser treatment.

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