South Florida Personal Injury Lawyers Blog

Florida Supreme Court Clarifies Wrongful Death Act

Published on: June 20, 2013 | by Friedman Rodman Frank & Estrada, P.A.

What happens if a plaintiff’s injuries are so severe, he or she dies during the course of a lawsuit? Does the case get dismissed? Can a spouse or other relative be substituted in as plaintiff? The Florida Supreme Court recently discussed this important issue as it related to a personal injury case filed against a tobacco manufacturer. In 2005, a couple sued the tobacco manufacturers Philip Morris and Brown and Williamson Tobacco Corporation. The basis for the suit was that the tobacco company’s products caused the husband to get lung cancer and other malignancies.

The husband died in 2006. The wife then filed a motion to amend the complaint to name additional defendants. She sought all damages available under the Florida Wrongful Death Act, but also claimed survival damages.

The tobacco manufacturer filed a motion to dismiss on the grounds that the Florida Wrongful Death Act does not allow a personal injury action to be converted into a wrongful death action. The tobacco manufacturer argued that the surviving wife had to file a new wrongful death action, rather than convert the existing lawsuit. Agreeing with the tobacco manufacturer, the circuit court denied the wife’s motion to amend and substitute and dismissed the action.

The wife then filed a motion to reconsider, arguing she was not converting a personal injury into a wrongful death suit. She explained that she was leaving open the possibility of an alternative claim for survival damages and that the different theories of recovery should be presented together in a single lawsuit.

Testifying in a Personal Injury Case in Florida

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

During trial, it can be difficult for some witnesses to control their emotions, particularly if they believe they’ve been wronged by the other side or their insurer. A recent personal injury case illustrates the importance of controlling one’s emotions in a trial setting, particularly if a judge has expressly ruled that a witness cannot talk about a specific subject.
In the case, the plaintiff was a driver of a car that had gotten rear-ended. She experienced injuries that required surgery. She sued the owners of the other car for damages, as well as her own uninsured motorist insurance carrier, State Farm. Liability was not contested at trial, but damages and causation were.

Before trial, the insurer filed a motion in limine to prevent any evidence from coming in about the insurer’s failure to follow its contractual obligations to the plaintiff. Motions in limine are filed to keep certain information out of the trial and away from the jury.

In this case, the insurer argued its failure to live up to its contractual obligations was irrelevant evidence and it was also inflammatory. The judge granted the motion to exclude the information. However, while testifying, the plaintiff had an outburst regarding the insurer’s failure to pay for her damages.

The insurer moved for a mistrial, arguing that the harm could not be undone. The judge denied the motion and asked the jury to disregard the testimony. The attorney for the other driver asked that the plaintiff’s attorney not be able to make any “bad insurance company” arguments. The plaintiff’s attorney agreed not to do so, but during closing arguments, he made several of these arguments.

Florida School Sued After Student’s Sports Injury

Published on: June 13, 2013 | by Friedman Rodman Frank & Estrada, P.A.

It is tragic when a student is hurt or killed in an athletic event due to a school’s failure to adequately supervise the student. Florida courts recognize that students owe a duty to students because they stand “partially in place of the student’s parents.”

When it comes to sporting events, schools must provide adequate instruction and adequate equipment, exercise reasonable care in matching athletes (in, for example, activities like wrestling), supervise appropriately and offer appropriate post-injury measures to protect a student’s injury from being worsened.

In an appellate case decided this past February, the court considered a tragic situation. A student athlete suffered severe brain damage after collapsing on the field during a soccer game at school. His coach and a nurse tried to revive him with CPR. The coach later claimed he called for an AED, but nobody brought one; there had been an AED on a golf cart nearby.

Florida Personal Injury Case Involving False Testimony

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

In Florida, Rule 1.540(b)(3) covers the question of fraud or misconduct of an adverse party during a lawsuit. The rule is modeled on a federal rule of civil procedure. Fraud or misconduct “of an adverse party” can include misconduct by either the other party to the lawsuit or his or her attorney. For example, it occurs if a party asks a witness to testify falsely or where an attorney knowingly presents false testimony. It does not include a witness’ own independent fraud, even when such a fraud helps an adverse party’s case.

One type of motion that can be filed if it is discovered that an adverse party committed fraud or misconduct in a lawsuit is a motion for relief from judgment. If a motion for relief from judgment on the basis of fraud is filed, the judge must hold an evidentiary hearing to assess the credibility of the witnesses. Importantly, it is not enough to show a fraud occurred; the party raising the issue must show the other party or his attorney participated in the fraud or knowingly permitted the fraud to go forward.

In a recent car accident case, a motion for relief from judgment became an issue. The case arose from an accident in which the driver of a car was traveling about 35 miles per hour as a motorcycle was waiting to turn left. According to the motorcycle driver he had already come to a stop in the median and was waiting to turn. According to the car driver, the motorcyclist was still in her lane of travel when she hit him; she saw him trying to cross in front of her and he was still moving when she hit him.

The car driver testified she did not skid, but there were skid marks at the scene. The main issue was whether the car was responsible for the accident or whether, as the car driver testified, the motorcyclist was still moving when she hit him. The location of the motorcycle during the accident, as shown by the skid marks, could prove who was responsible.

Florida Appellate Court Reverses Jury Verdict in Medical Malpractice Case

Published on: June 6, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Medical malpractice cases in Florida must meet high standards of proof. They usually require testimony from expert doctors and nurses who are willing to testify against the doctor or nurse in the case. A Florida appellate court recently reiterated the standards by which a plaintiff can win a medical malpractice case.

In the case, an eighty-seven year old woman fell and broke her hip. Before she fell, she had been reasonably healthy. After she fell, she was admitted for hip surgery and began to deteriorate. She started to suffer from anemia, a urinary tract infection and acute renal failure, among other things.

The woman became mostly immobile and needed help to move around. An anti-coagulant was prescribed to avoid a pulmonary embolism. She also developed a Stage IV bedsore on her spine. Nonetheless she was discharged from the hospital and moved to another facility.

A visiting doctor noticed that the bedsore was discharging material. He and a nurse used a scalpel to cut out the dead tissue, applying a topical anesthetic. Because of the anti-coagulant the woman was taking, there was a threat of excessive bleeding. Therefore, they could not remove all the dead tissue and treated it with enzymatic debridement. They made several recommendations for her treatment until they could visit again the following week to finish up their care of the bedsore.

Florida Appellate Court Allows Lawsuit to Proceed Against Negligent Coworker

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

A Florida appellate court recently dealt with the differences between personal injury lawsuits brought against a decedent’s employers versus his coworker who caused his injury/death. In this case, the defendant was a spotter driver who used tractors to move trailers for purposes of loading and unloading merchandise. One morning, he was called to the loading dock and he arrived by tractor. Another worker was next to him in another tractor. The defendant drove to the dock and got out. Meanwhile the other worker also parked in the loading dock area and got out of the tractor.

The defendant assumed the worker was going to talk to another driver, hooked the tractor to a trailer and got back into his tractor. He backed up the trailer and felt a bump. There was no way for the defendant to see what happened behind the trailer and the backup alarm was not working. The defendant later testified he knew the backup alarm wasn’t working. The other worker had walked behind the trailer and had been crushed between the back of the trailer and the warehouse dock pad.

The defendant testified that he had not reported that the backup alarm was not working to the employer’s maintenance group. The employer’s safety protocol would have required the tractor be taken out of service to repair the backup alarm. On routine checks, the maintenance staff had not, apparently, checked the alarm themselves.

The Occupational Safety and Health Administration (OSHA) cited the employer for the inoperative backup alarm. Meanwhile, the decedent’s representative filed a lawsuit against the employer and the driver that caused the death, alleging an intentional tort against the employer and gross negligence against the driver.

Florida Appellate Court Applies Slip and Fall Law Retroactively

Published on: May 31, 2013 | by Friedman Rodman Frank & Estrada, P.A.

A Florida business owner owes two duties to those he or she invites into their business: (1) to take ordinary and reasonable care to keep the premises of the business safe and (2) to warn of any dangers actually or constructively known by the owner that the visitor to the business could not be aware of on his own.

In 2001, a ruling in a Florida Supreme Court case shifted the burden of proof to business owners who were sued when someone slipped and fell on a foreign substance on their premises. The owners had to show they exercised reasonable care in maintaining the property. This was a change from earlier case law that required the plaintiff to prove the owner’s negligence.

The Florida Legislature responded by enacting an amendment to the Florida statutes. The amendment took effect in 2010. It required that a plaintiff prove the breach of the second duty in slip and fall premises liability cases: that the owner knew or should have known of a slip and fall hazard in a business establishment. This essentially returned slip and fall law to the state it had been in before the Supreme Court’s 2001 ruling.

Recently, the Florida District Court of Appeals considered the issue of whether the amendment could have retroactive effect on a plaintiff’s case stemming from her slip and fall on the floor of the Miami International Airport. The plaintiff in that case filed suit in 2009. At that time the slip and fall statute in effect did not require the plaintiff to prove the owner’s actual or constructive knowledge of a transitory foreign substance in order to recover for premises liability.

What is Florida’s Dangerous Instrumentality Doctrine?

Published on: May 24, 2013 | by Friedman Rodman Frank & Estrada, P.A.

The Florida Supreme Court adopted the dangerous instrumentality doctrine in 1920. This doctrine provides: a vehicle owner (and others that own inherently dangerous tools) may be held vicariously liable when he or she consents to let someone drive his vehicle who operates it irresponsibly and causes damages. The doctrine is similar, but separate from, the doctrine of respondeat superior, which imposes liability upon a “principal” for negligent acts of his agent that occur during the course and scope of the agent’s employment.

Parents of minors in Florida must take particular note of the dangerous instrumentality doctrine. A parent who signs his or her minor’s application for a driver’s license may be held vicariously liable for the child’s negligent operation of a motor vehicle.

A Florida appellate court recently considered the question of whether application of the dangerous instrumentality doctrine means that a driver can be considered an agent of the car’s owner. This is less complicated than it may sound.

The question came up during a wrongful death lawsuit. A car crash killed both the driver of a vehicle and his passenger when the driver failed to stop at a red light. The passenger’s mother filed a lawsuit against the driver’s estate and the driver’s father, who owned the vehicle. The father was included in the lawsuit under the dangerous instrumentality doctrine.

Florida Appellate Court Rules Medical Malpractice Pre-Lawsuit Requirements Not Necessary in a Wrongful Death Action

Published on: May 17, 2013 | by Friedman Rodman Frank & Estrada, P.A.

The Fifth District Court of Appeal of Florida recently reviewed a trial court’s dismissal of a wrongful death action for plaintiff’s failure to comply with the pre-lawsuit requirements for medical malpractice cases. In medical malpractice cases, a plaintiff must meet certain requirements, such as investigating before filing suit and giving notice to prospective defendants before filing suit. This case ended well for the plaintiff. However, it is a good example of why it’s so important to hire a personal injury attorney with multiple areas of experience if a loved one is killed in connection with a health care provider or in a context that might give rise to a medical malpractice claim. The rules that must be followed in contexts that overlap multiple practice areas can be tricky to navigate on your own.

The facts giving rise to a lawsuit arose when a 25-year-old pregnant woman visited the hospital complaining of pain. The hospital moved her to the defendant, a behavioral health facility, that evening, but when she arrived she was still complaining of abdominal pain. She was in distress, but over the next two days, the facility acted (and failed to act) in ways that led to her death.

Florida Appellate Court Rules Inconsistent Testimony Is Not Enough to Warrant Dismissal

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

In Gautreaux v. Maya, a Florida appellate court considered a dismissal of a personal injury lawsuit based upon an alleged fraud upon the court. The case arose from an automobile accident. The plaintiff claimed continuing migraine headaches as a result of an accident caused by the defendant’s negligence.

The defendant filed a motion to dismiss the plaintiff’s lawsuit. He claimed that the plaintiff had falsely claimed she never had headaches before the accident. At the motion hearing, the defendant presented deposition testimony to this effect. During the same month, however, a neurologist examined her. The neurologist’s report of the examination revealed that the medical assistant had noted that the plaintiff did not previously have the symptoms of headache.