South Florida Personal Injury Lawyers Blog

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.

Employer Liability for Rental Car Accident in Florida

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

In a recent case the Florida plaintiffs were injured in a car accident involving a rental car. The rental car was paid for by the employer Bell Partners and authorized for its employee to drive for business purposes. However, at the time of the accident it was driven by the employee’s husband.

The plaintiffs sued the employer under the dangerous instrumentality doctrine. It claimed that the employer was vicariously liable for authorizing and paying for the driver’s wife to rent the vehicle. The employer denied liability. It argued that it had not agreed to the employee’s husband driving the rental car and that its policy prohibited unauthorized drivers or personal use of company rental cars.

Both parties filed cross-motions for summary judgment. The driver’s wife frequently traveled for her employer who owned several senior living communities in multiple states.

Negligence Per Se in Florida Escalator Injury Case

Published on: April 28, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a 2010 case, a woman appealed from a judgment entered after directed verdict in a personal injury case. The woman had sued an elevator corporation and Miami Dade County after she fell on an escalator at the airport. She claimed the escalator had stopped abruptly. She had fallen. The escalator had been reported as not working just hours before her fall.

There was no record of a technician checking the escalator and also no record of repair work performed on the escalator. When the case went to trial, the court excluded evidence that there had been previous problems with the escalator and also denied the plaintiff’s request that the jury be instructed on negligence per se. The defense attorney was permitted to argue there was no evidence of prior problems over the plaintiff’s objection.

The plaintiff’s doctor testified that the plaintiff would require back surgery in the future, but the trial court wouldn’t allow the doctor to give an opinion about future surgery because he was not a surgeon.

Can a Florida Co-Owner of a Car Avoid Vicarious Liability for an Accident?

Published on: April 24, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, the Florida Supreme Court answered a certified question on the question of whether a co-owner of a car could avoid vicarious liability by claiming he didn’t intend to be owner of the vehicle and had relinquished control to a co-owner. Robert Christensen paid for a Chrysler PT Cruiser in 2003, putting the title in both his wife’s name and his own name. Both signed the application under penalty of perjury to have the title paperwork list them as co-owners. They were in the process of divorcing.

The husband didn’t receive the certificate of title because it went to his wife. He did not have a key or use the vehicle, nor did he live with his wife, though title was in his name. About 22 months later, the wife negligently hit and killed a man while driving the car. The title was still in the name of both husband and wife as co-owners. The car was operated with the husband’s consent.

After the accident, the decedent’s wife Mary Jo Bowen sued for wrongful death against both Christensen and his wife. The plaintiff claimed that Christensen was vicariously liable for his wife’s negligent operation of the vehicle under the dangerous instrumentality doctrine. Christensen argued that he wasn’t vicariously liable. He later testified he had bought the car as a gift for his wife and wasn’t involved with the car after purchase.

Burden of Proof and Nursing Home Agreements

Published on: April 21, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a woman appealed an order that granted a retirement home’s motion to compel arbitration. These motions are fairly common in nursing home abuse or nursing home negligence cases. Often a nursing home requires incoming residents to sign an arbitration agreement before being admitted and this agreement requires the resident to submit any dispute to a particular arbitrator and set of arbitration rules. Issues arise when the arbitration agreement requires a resident to subscribe to rules that impact their ability to recover for serious losses under Florida law.

In Florida, an arbitration agreement can be found contrary to public policy where the agreement substantially limits remedies set forth under the Nursing Home Residents Act (NHRA) or Assisted Living Facilities Act (ALFA). Under NHRA, any claim alleging a violation of rights or negligence causing injury or death to someone living in a nursing home must be proven by a preponderance of the evidence. A claimant must show (1) nursing home or other defendant’s duty to the resident, (2) breach of duty, (3) the breach is a legal cause of loss or injury or other damage to the resident, (4) actual loss, injury, death or damage due to the breach.

In this case, the plaintiff had signed an arbitration agreement that required arbitration by the American Health Lawyers Association under its alternative dispute resolution rules. She signed it in order to be admitted to the residential facility.