South Florida Personal Injury Lawyers Blog

Florida Appeals Court Clarifies Notice Requirements in Workers’ Compensation Case: Caceres v. Sedano’s Supermarkets

Published on: June 9, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s First District Court of Appeals has overturned a judge’s denial of a repetitive use injury workers’ compensation claim. In Caceres v. Sedano’s Supermarkets, a grocery store employee filed a workers’ compensation claim for repetitive trauma injuries he allegedly sustained while on the job several years earlier. A Judge of Compensation Claims denied the man’s claim without considering the extent of his harm because the judge determined that the man filed his claim too late to recover. The worker then appealed his case to Florida’s First District.

According to the appeals court, Florida law requires that an injured worker inform his or her employer of a workplace injury within 30 days of the date of the injury or the initial manifestation of the harm. The Court of Appeals stated that this statutory period normally begins to run on the date of last exposure in cases of repetitive harm. Next, Florida’s First District found that the Judge of Compensation Claims misinterpreted the statute when he ruled that the supermarket worker filed his claim too late without considering any evidence related to the date, cause, or extent of the worker’s alleged harm. Instead, the judge apparently read Section 440.185(1) of the Florida Workers’ Compensation Statute too narrowly when he summarily denied the man’s request for benefits because more than 30 days had passed since the purported injury had occurred. Since there was insufficient information with which to examine whether the man’s workers’ compensation claim was filed in a timely manner, the appellate court reversed the judge’s order and remanded the case for further consideration.

In Florida, individuals who are hurt at work are generally entitled to collect workers’ compensation benefits. Employees who suffered harm while on the job may be entitled to collect lost wages, temporary and permanent disability benefits, and medical expenses. Certain relatives of someone who was killed in a tragic workplace accident may also be entitled to collect funeral costs and other compensation. In some cases, a person who was hurt at work may be entitled to file a personal injury lawsuit against a third party, such as a defective equipment manufacturer, who was somehow partially responsible for a worker’s injury. Regardless of the type of harm suffered, it is vital for an injured employee to file his or her workers’ compensation claim in a timely manner.

Florida’s Fifth District Court of Appeals Reverses Summary Judgment in Car Accident Case: Hubner v. Old Republic Insurance Co.

Published on: June 5, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s Fifth District Court of Appeals has reversed a summary judgment order in a car accident case. In Hubner v. Old Republic Insurance Co., a volunteer for Boy Scouts of America repeatedly transported a potential Eagle Scout in his personal vehicle to a cemetery to participate in a clean-up event. Following the final stage of the clean-up event, the man apparently drove home to retrieve a camera in order to photograph the end result of the Boy Scout’s efforts. After the volunteer returned to the cemetery and took photos, he headed home. The volunteer made no stops on his way home from the cemetery. While en route, the man reportedly struck another vehicle head-on. Both the volunteer and the other motorist were allegedly severely harmed in the automobile accident.

At the time of the collision, the Boy Scouts of America maintained a liability insurance policy that covers the organization’s registered volunteers who are acting within the scope of their official duties. According to the insurance policy, such duties were defined quite broadly. The two men involved in the crash later filed a claim against the insurance company for damages related to their accident injuries. As part of a declaratory judgment action, the insurance company acknowledged that the man was a registered volunteer with the organization for approximately 55 years when the wreck happened but argued before a trial court that he was no longer acting within the scope of his duties as a volunteer when the injury accident occurred.

The insurance company next filed a motion for summary judgment. In order to prevail on a motion for summary judgment, a moving party like the insurance company is required to demonstrate that no material issue of fact exists and the party is entitled to judgment as a matter of law. The trial court granted the insurance company’s motion for summary judgment and the injured parties appealed the case to Florida’s Fifth District. Continue Reading ›

Panama City Federal Court Orders Department Store to Share Evidence in Slip and Fall Case: Sowell v. Target Corp.

Published on: June 2, 2014 | by Friedman Rodman Frank & Estrada, P.A.

A federal court in Florida has refused to allow a department store to claim surveillance video footage of an individual’s slip and fall while on company property was protected from disclosure by the work product privilege. In Sowell v. Target Corp., a woman was purportedly hurt when she fell inside of a chain department store. Following her injury accident, the woman filed a lawsuit against the business and sought a digital copy of the store’s video footage of the incident as part of a discovery request. According to the retailer, all video footage at the company’s chain of stores is erased in the ordinary course of business after a limited time period. Instead of erasing the video, the store saved a copy of the woman’s fall after she reported it. Because of this, the store alleged that the video was prepared in anticipation of litigation and should not be entered into evidence due to the work product privilege.

Although items prepared for litigation in Florida are normally protected under the work product doctrine, anything created in the ordinary course of business is ordinarily discoverable in a lawsuit. According to the Northern District of Florida, the store’s surveillance videotape was not only responsive to the woman’s discovery request, it was created as a part of the chain’s routine business practice of monitoring employees and customers for theft and other potential issues.

Additionally, the court held that the business failed to demonstrate the video was created for any other reason or offer a valid justification for withholding it. Finally, the Florida federal court stated a delay in producing the video might place the injured woman at a disadvantage if store employees were deposed after reviewing the slip and fall tape. Since the department store’s video evidence of the woman’s injury accident was not privileged and withholding surveillance footage of the incident from her might place the woman at a disadvantage at trial, the Northern District of Florida ordered the business to share the film. Continue Reading ›

Is There a Non-delegable Duty to Supervise Florida Hospital Doctors?

Published on: May 27, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a 2012 case, a plaintiff appealed a final judgment that entered a defense verdict for a hospital in her wrongful death case. The case arose when her husband went in for back surgery and died the next day from cardiac arrhythmia. After that, the plaintiff sued the hospital for its own negligence and the negligence of its employees.

The plaintiff named an ER physician as a negligent agent for whose actions the hospital was liable. The plaintiff claimed the hospital was vicariously liable under the respondeat superior doctrine. This doctrine permits a company to be held responsible for its employees that act in the course and scope of employment on the employer’s behalf. The plaintiff also alleged the hospital was responsible for the physician’s conduct because there it had a nondelegable duty to supervise him.

The plaintiff’s expert witness testified in deposition that the doctor had violated is duty by delaying in his response to an emergency situation. The hospital filed a motion for partial summary judgment. It argued that the ER doctor was an independent contractor and therefore it wasn’t liable for him. The trial court granted the partial summary judgment, ruling the doctor did not serve as an actual agent of the hospital. The trial court concluded there was no non-delegable duty to supervise. Continue Reading ›

Establishing Constructive Knowledge in Florida

Published on: May 23, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a man appealed a grant of summary judgment as to one of the causes of action in his slip and fall case. The case arose at a country club where the man was an invitee. There was a slippery substance on the dance floor and the man slipped on it. The club had allowed patrons to take drinks onto the dance floor.

The man filed suit alleging that the club had created the dangerous condition, or it knew or should have known of the condition because it was there long enough that it should have been discovered. He alleged that he experienced bodily and other injuries as a direct and proximate result of the club’s negligence.

The club answered and later filed for summary judgment. It argued that the plaintiff had to establish the club’s knowledge of the dangerous condition under Florida Statutes (2010) section 768.0755. It also argued that even though constructive knowledge could be established by showing the condition existed for so long the defendant should have known of the condition by exercising ordinary care, the plaintiff offered no evidence about how long the substance had been on the floor. Continue Reading ›

Causation in Medical Negligence Cases in Florida

Published on: May 20, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a 2012 case, a medical center appealed after it was found liable for medical and nursing negligence that had caused a patient’s death. It argued that the plaintiff failed to show its nursing staff was negligent or that if the negligence had not happened, the woman more likely than not would have survived.

The case arose when a 45-year-old woman experienced head pain and went into a state similar to a coma. Her husband called an ambulance. The paramedics measured her vital signs, which were close to normal and stabilized her and took her to the defendant medical center. They diagnosed her with a grand mal seizure.

On the way, she became conscious enough to ask paramedics to take off the mask. Before arriving at the hospital she had another seizure, which brought to her another state similar to a coma. The paramedics recorded her vital signs as near normal. She was brought to the emergency room that evening. Continue Reading ›

Slip and Fall at a Florida Gas Station

Published on: May 15, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a couple appealed a final summary judgment in a travel center’s favor. They had also wanted to amend the complaint to include punitive damages, but were denied. The case arose when a man slipped on diesel fuel that had spilled at a service station. He sued on the grounds of negligent maintenance. The defendant argued that its employees had followed all the appropriate clean-up procedures in addition to the spill being open and obvious. The trial court agreed with the defense and granted summary judgment in its favor.

In slip and fall cases, the burden to prove there are no material issues of fact is more difficult than some other personal injury cases. A court may not grant summary judgment unless the defendant establishes that the absence of negligence was unequivocal or that it was the injury’s exclusive proximate cause.

The man who fell was considered a business invitee. In Florida, a business invitee is owed (1) a duty to employ reasonable care in ensuring the property’s conditions have been safely maintained and (2) duty to warn about dangers an owner has or should have had knowledge of, that are not known to the invitee. The man was a seasoned truck driver, plus he saw the spill right away when he came to the station and was aware of it because he had seen the trash can aisle blockage and had moved through the spill as he walked to the station store. Continue Reading ›

Releases for Dangerous Activities in Florida

Published on: May 13, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a man whose wife drowned while scuba diving in 2010 appealed the court’s granting of summary judgment in favor of the recreational diving operation Key Dives. The wife had drowned at the start of an advanced open water dive to an underwater wreck.

It was Key Dives’ practice to require customers to sign a release before a day’s dive. The man and his wife signed these releases in favor of Key Dives on previous dives. On the morning of the fatal dive, the couple was late in arriving. They did not sign the release for that day’s dive. It was a dive for which dive industry standards dictated a particular type of release was to be used.

On the morning of the dive, the woman was worried about diving for unknown reasons. Ocean swells were between 4-5 feet. The husband went in first and his wife followed. After going down about 10 feet, she signaled she wanted to come back to the surface. She tried to board the boat but lost her grip and drifted off. An alarm was sounded, but she was found drowned.

“Stand Your Ground” and Personal Injury Cases

Published on: May 8, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a roofing company defendant and Jose Alvarez asked the appellate court to review an order denying a motion to dismiss a civil action brought under the provisions of the Florida Stand Your Ground Law. The trial court denied the motion without holding an evidentiary hearing to decide whether Alvarez was right to employ force against the plaintiff under Stand Your Ground.

The case arose when Alvarez hit the plaintiff, a former employee of the roofing company, with a baseball bat at the roofing company. Alvarez claimed he was immune from criminal prosecution because he had used justifiable force against a threat that the plaintiff was about to use unlawful force. He filed a motion to dismiss under Stand Your Ground. The criminal court granted the motion and dismissed the charges.

The plaintiff sued Alvarez for battery, assault, negligence, and intentional infliction of emotional distress while the criminal case was pending. He also sued his employer, claiming vicarious liability for negligence and for negligently retaining a dangerous employee. He also asked for punitive damages.

Birth Injuries in Florida

Published on: May 6, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case the parents of a child with birth defects sued an ob-gyn and the woman’s health clinic where she worked for medical malpractice. The child had severe birth defects that the parents believed were caused by a drug the woman had stared taking again in order to treat a chronic disease.

The woman claimed that the clinic knew she was planning to have a second child. An over-the-counter pregnancy test yielded a positive result. Two visits a few days later the clinic told her the pregnancy was nonviable.

The clinic recommended she have a dilation and curettage. She refused. After that she started taking a drug again believing the fetus would be expelled spontaneously. She claimed later she was not aware of the potential adverse effects of taking the drug should the baby be born. The baby was born.