South Florida Personal Injury Lawyers Blog

“Open and Obvious” Dangers in Florida

Published on: November 4, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Slip and fall cases can be difficult to prove, particularly if the hazard that causes the fall is somewhat “open” or “obvious.” A recent case arose when a customer at Home Depot parked her car in a designated accessible parking space and upon returning to her car tripped over a wheel stop where her car was parked. It was a clear, sunny morning and she was carrying her purchases, a purse and keys.

The woman looked at the accessibility sign, but did not see the wheel stop because it was the same color as the parking lot. Her left foot caught on the wheel stop and she fell. She was hurt and had medical expenses. She and her husband filed a personal injury lawsuit against Home Depot.

The plaintiffs argued that the wheel stop was a dangerous condition and the defendant had an obligation to maintain the premises and to warn of any dangerous conditions on the property. Home Depot moved for summary judgment, arguing that the wheel stop was an “open and obvious” danger and therefore, it had no duty to warn customers about the wheel stop. It also argued there were no disputed issues of fact regarding its maintenance of the property.

What is the Role of an Expert Medical Advisor in Florida?

Published on: October 30, 2013 | by Friedman Rodman Frank & Estrada, P.A.

In Florida, an Expert Medical Advisor (or “EMA”) is asked by a workers’ compensation judge to resolve certain controversies. A judge must order an EMA if either party requests one. They also must be called when there is a disagreement between two independent medical examiners.

A judge may also choose to call an EMA when doctors disagree about the medical evidence in the case, when doctors disagree about whether further treatment is necessary and when doctors disagree about an employee’s ability to come back to work. The EMA’s opinion is given a legal presumption of correctness. This presumption can be rebutted only by clear and convincing evidence to the contrary of the EMA’s opinion.

In a recent workers’ compensation case, the employer argued that a workers’ compensation judge did not give the EMA’s opinion a presumption of correctness when it awarded a workers’ compensation claimant permanent total disability. In the case, the judge had appointed the EMA to resolve a conflict in medical opinions about the claimant’s restrictions for work.

Religious Arbitration Agreement Upheld in Florida Wrongful Death Case

Published on: October 23, 2013 | by Friedman Rodman Frank & Estrada, P.A.

An interesting wrongful death case regarding the validity and applicability of arbitration agreements arose recently when a nineteen-year-old enrolled at Teen Challenge’s substance abuse facility in Florida. He signed an arbitration agreement that stated he accepted the Bible as the word of God and that God wanted the parties to resolve their disputes in accord with certain Biblical principles in private meetings.

The agreement provided that if they weren’t resolved in private meetings, they would be resolved by biblically based mediation or, if not resolved there, in legally binding arbitration. He also signed a waiver that stated he understood Teen Challenge was an evangelical ministry and that he would therefore have to attend Christian religious activities.

Two months later, he broke the rules and his mother was told he would be discharged. After that, he was put in jail due to a probation violation in Tennessee where his mother lived. The Tennessee authorities permitted him to be released to try Teen Challenge again.

Important Florida Ruling on Injured Workers With Permanent Disabilities

Published on: October 18, 2013 | by Friedman Rodman Frank & Estrada, P.A.

In Florida there is a 104-week time limit on temporary disability benefits. The problems with the way this limit was applied were first addressed in a 1998 case in which the claimant was almost at the end of the 104-week period, but he hadn’t reached maximum medical improvement.

The appellate court in that case held that an employee who had run out of temporary benefits had to show total disability and that total disability would exist after the date of maximum medical improvement in order to get permanent disability benefits. This was based on the idea that a claimant could not receive permanent total disability benefits if it had not been determined that he had reached his maximum medical improvement.

Certain claimants who were totally disabled when the temporary disability benefits were concluded could not prove that total disability would exist after maximum medical improvement. They would not be eligible for any benefits though they were unable to work.

Will Changes to “Stand Your Ground” Affect Personal Injury in Florida?

Published on: October 14, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s “Stand your ground” laws gained national attention in connection with the Trayvon Martin shooting. This law permits someone who is attacked in a place where he or she has a right to be and who is acting lawfully to “stand his or her ground” and “meet force with force.”

Unlike other states where there is a duty to retreat, in Florida the person may even use deadly force if he believes it necessary to do so in order to prevent injury or death or the commission of a “forcible felony” to anyone.

Recently, a Florida Senate committee approved some changes to the law, which would alter neighborhood watch programs. Of particular note to potential plaintiffs are changes in connection with personal injury lawsuits that could arise in the context of a person utilizing the law to defend him or herself.

Exceptions to Workers’ Compensation Immunity in Florida

Published on: October 11, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Under Florida Workers’ Compensation law, employers have worker’s compensation immunity for their employees. An “employee” also means an independent contractor working in the construction industry. It does not, however, include someone who is an owner-operator of a motor vehicle who transports a haul under contract with a “motor carrier.” If an owner-operator of that vehicle is injured in an accident, it can be difficult to sort out legal liability for the injuries.

In a recent case, a single-vehicle dump truck accident hurt a plaintiff at a construction project. The defendant was a general contractor who had entered into a subcontract with a trucking company that offered to haul fill from the project to the dump. The plaintiff was a dump truck driver who had entered into a service contract with the subcontractor. The agreement between them identified the driver as an “independent contractor” and the subcontractor as a “broker.”

The subcontractor paid the plaintiff on a commission basis and the plaintiff was required to maintain his own vehicle, pay for all expenses including gas, and choose his own schedule, as well as the manner of transporting a load. While hauling a load of construction materials, the plaintiff’s dump truck turned over, injuring him. The plaintiff sued the general contractor for negligence and loss of consortium.

Negligent Entrustment in Florida

Published on: October 7, 2013 | by Friedman Rodman Frank & Estrada, P.A.

A Florida statutory subsection limits damages when an owner loans his vehicle to another person whose negligent operation of the car leads to damages to a victim. In that case, the owner is liable only up to $100,000 per person and up to $300,000 per incident for bodily injury and $50,000 for property damage.

In a recent case, a father and son shared title to a vehicle. The son crashed into a woman and her three minor children. The accident killed one of the three children and injured all of them. The woman and her husband sued the son for negligence and also sued his father as being “vicariously liable” because he was a joint owner of the car.

The jury found that both the son and the woman were 50% negligent. The jury awarded the father of the three children medical and funeral expenses for the child that had been killed. It also awarded past and future pain and suffering to each member of the family, plus medical expenses to the two living children.

When is Evidence About a Driver’s License Admissible in a Florida Personal Injury Trial?

Published on: October 4, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Both plaintiffs and defendants are subject to intense questioning about personal subjects when engaged in a personal injury lawsuit in Florida. Each side will attempt to find information to discredit the other side. If you drove on a suspended license, if you have a history of traffic violations or you had no license at the time of an accident, you may be concerned about this evidence coming in and affecting your case.

In order for evidence regarding a driver’s license to be admissible in a Florida personal injury case there must be a causal connection between the violation and injuries suffered. The driver’s competence must be at issue. In other words a person’s violation of a traffic regulation is admissible only if it tends to prove the person’s negligent operation of the vehicle or to show the driver’s incompetence.

The accident at issue in a recent case happened at the intersection of Hwy 301 and S.R. 674 in December. A woman was rising in a Nissan Sentra driven by her nephew. He was driving northbound and as he tried to turn onto S.R. 674, he crashed into a white cargo van that was driving southbound. The van belonged to a stucco company and it was hauling a cement mixer.

The Rescue Doctrine in Florida

Published on: October 1, 2013 | by Friedman Rodman Frank & Estrada, P.A.

In Florida, a person who has created a perilous situation for another person will be held to have caused the peril not only to a victim, but also the person attempting to rescue him. The creator of the situation is thereby liable for the rescuer’s injuries. A plaintiff must prove three elements: the defendant’s negligence, the person to be rescued was in imminent peril due to the defendant’s negligence, and that the rescuer acted reasonably under the circumstances.

In a recent case, the plaintiff was at the hospital while hospital employees were gait training patients in the hallway. A patient who was being gait trained began to fall and in the process caused the plaintiff to fall and suffer an injury.

She sued the hospital claiming that it violated its duty to warn of a dangerous condition and to keep the premises reasonably safe for invitees that might be present while inexperienced therapists were performing gait training. She claimed these conditions were not apparent to her. However, she did not plead the rescue doctrine. Instead she presented the whole account as one in which she happened to be walking down the hallway when she was knocked over by an unknown patient.

When Is An Accident Reconstruction Expert’s Testimony Excluded in Florida?

Published on: September 26, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Critical to some Florida car accident cases is the testimony of an expert on accident reconstruction. Often it is unclear what actually happened–the parties either don’t remember or have grossly different accounts of the events. In those cases, an accident reconstruction expert can shed light on all that is unknown by using concrete, certain facts. The other side may not want that expert to testify. When is it appropriate for the court to prohibit the testimony or accompanying evidence?

In a recent case, a couple was driving north in Florida and stopped at a stop sign at an intersection. As the driver turned left, his car hit the plaintiff’s vehicle as it approached from the left, causing the plaintiff’s car to spin and hit a palm tree. The plaintiff was thrown out of his vehicle and suffered significant injury.

The single driver sued the couple, claiming that the husband’s negligence in entering into his lane of traffic caused the crash and his injuries. The defendants argued that the plaintiff caused the accident by going over the posted 35 mph speed limit, a fact they supported on the basis of the husband stopping at a stop sign and not seeing the plaintiff. They also pointed to the physical damage, the final resting point of the vehicles and the plaintiff’s failure to wear a seatbelt as evidence that his injuries were his own fault.