South Florida Personal Injury Lawyers Blog

Is There A Duty to Help Someone In Danger in Florida?

Published on: August 15, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Duty is a question of law in Florida. An affirmative duty to help a person in need cannot be imposed on just anyone. An appellate case illustrates just how strict the prohibition against imposing such an affirmative duty is.

In the case, the plaintiff was drinking with a man and his friend at a bar. The men were drunk. The man got belligerent with people at the bar. The plaintiff told him he was acting like an a******. The man and his friend followed him, asking why the plaintiff called him that.

The plaintiff ignored the pair, but had to go between the man’s truck and another car. As he went between them, the man hurried to the other side, trapping the plaintiff. The man’s friend followed him into the space between the cars.

The Defense Goes Too Far While Arguing a Florida Premises Liability Case

Published on: August 12, 2013 | by Friedman Rodman Frank & Estrada, P.A.

As we have explained in earlier posts, Florida has become a comparative negligence state. This means that a plaintiff whose own conduct contributes to his injuries will have his or her award reduced by the percentage of fault that can be attributed to him.

In a case decided last year, a plaintiff challenged the trial court’s judgment, which found her 80% comparatively negligent for her slip and fall at Wal-Mart, and also appealed the denial of her motion for new trial. The store cross-appealed on the grounds that the trial court had improperly dubbed its proposal for settlement invalid.

The case arose when the plaintiff slipped and fell in the store. She claimed there was something slippery on the floor and that she was injured such that she required neck and shoulder surgery.

Birth Injuries and Medical Negligence in Florida

Published on: August 8, 2013 | by Friedman Rodman Frank & Estrada, P.A.

The birth of a child is often a joyous event for a couple. Unfortunately, there are cases when obstetricians make errors that lead to permanent problems for the child.

Last year, a Florida Court of Appeals considered the birth of a boy who, at his birth, seemed to have limited use of an arm, possibly “shoulder dystocia,” which can be the result of an injury to a particular nerve during a baby’s birth.

Within a few months of the baby’s birth, his mother contacted a plaintiff’s personal injury law firm that focused on medical malpractice cases. The law firm initiated the presuit investigation process that is required. After reviewing the obstetrical records, the law firm told the mother that they didn’t think the doctor had failed to meet the obstetrical standard of care during the delivery. Accordingly, the mother dropped the issue.

The boy experienced years of physical therapy, but after a few years it became likely that therapy was not ever going to totally resolve the issue. His mother consulted a specialist who suggested surgery and who told her that the boy’s injury might have been caused by medical negligence. A couple of years later, she filed suit against the obstetrician and her practice.

The doctor defended on the grounds that the lawsuit was barred by the statute of limitations. She filed two motions to dismiss the action. In the first motion she argued that the complaint was an improper pleading that failed to state a cause of action by claiming the plaintiff did not become aware of a cause of action for malpractice until a few years after the baby’s birth.

The second motion claimed the complaint was a sham since the mother had consulted a medical malpractice firm in 2005, just after the baby was born. The doctor claimed that since she suspected medical practice in 2005, it was false to try to claim she didn’t become aware of the medical negligence until 2009 when a doctor told her the boy’s shoulder dystocia could have been caused by the obstetrician.

What is Florida’s “Obvious Danger” Doctrine?

Published on: August 5, 2013 | by Friedman Rodman Frank & Estrada, P.A.

In Florida premise liability cases, the obvious danger doctrine allows a landowner to avoid liability where the condition that caused the injury was known or obvious to the person who was injured.

In a recent case, a woman sued a market after tripping on a mat outside the public entrance to the store. The woman and her husband went to the market to buy groceries. The couple couldn’t remember if the mat was present at the entrance when they entered the store. However, the woman did remember that she’d seen the mat in front of the door on prior trips to the store.

After they were done shopping the man took the shopping cart of purchases to the car while the woman stayed inside to buy some additional items. The man noticed that an employee was laying the mat at the door as he left. The mat was not perfectly flat.

When the woman left the store, she tripped on the mat and fell, injuring her neck, elbows and knees. Later the husband would testify that a representative of the store claimed they were at fault at the time. The woman filed a premises liability complaint against the store, alleging that it failed to warn of a dangerous condition.

Can a Defendant Use Your Financial Condition as Evidence in a Florida Personal Injury Case?

Published on: August 2, 2013 | by Friedman Rodman Frank & Estrada, P.A.

A Florida appellate court recently addressed this issue in the context of a personal injury plaintiff who claimed her financial situation did not permit her to seek or receive consistent treatment for claimed injuries. The case arose out of a car crash in which the defendant claimed his car was bumped by another vehicle where it rear-ended the plaintiff’s car during stop and go traffic. The plaintiff claimed to be okay after the accident and drove home by herself.

Later she claimed she had a strain or sprain injury in her neck and back and suffered herniated discs due to the accident. She saw a chiropractor who recommended physical therapy for her symptoms: neck pain, arm pain, headaches, numbness, and impaired vision. She quit therapy because it made her feel worse.

When Can a Plaintiff Ask for A New Trial in Florida?

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

Under certain circumstances, after a trial, a personal injury plaintiff may make a motion for a new trial, sometimes focusing on a new trial for a specific issue in the original trial. One reason for a new trial is a trial judge’s finding that the verdict rendered by the jury is contrary to the evidence put forward at trial. This means that the judge believes there is no way a reasonable jury could have concluded as it did.

In a recent case, a plaintiff was awarded past and future medical damages, as well as past and future pain and suffering by a jury. The defendants did not contest liability for the car accident. They didn’t contest that the plaintiff’s first surgery arose because of the injuries from the car accident. At trial, the issues were whether the costs of the first surgery were reasonable and whether another surgery years later was also the result of the car accident. The parties disagreed as to why the later surgery arose. They presented conflicting evidence at trial on these issues and had different expectations about what factual findings the jury would make.

Rear-Ending Vehicle Accidents in Florida

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

In Florida, there is a rebuttable presumption that the rear driver caused a rear-ending car accident–that the rear driver’s negligence was the sole proximate cause of a collision. When this rule was put in place, Florida was a contributory negligence state. That meant that when a plaintiff was at all at fault, the defendant could use the plaintiff’s negligence to show he or she should not recover any damages, even when the plaintiff was only slightly at fault.

Last year, the Florida Supreme court decided a rear-ending car accident case that clarified what the rear end presumption means today when contributory negligence is no longer a bar against a plaintiff’s recovery of damages in an auto accident. In that case, a motorcycle passenger was injured when the motorcycle driver unsuccessfully tried to avoid crashing into the rear end of the defendant’s car. The car was driving 35 miles per hour down the road when he unexpectedly slammed on his brakes for no observable reason.

What is Florida Courts’ “Stuart instruction?”

Published on: July 19, 2013 | by Friedman Rodman Frank & Estrada, P.A.

As if getting into a car accident and suffering serious injuries weren’t bad enough, some people in Florida find that they are further injured when they go to the hospital to treat their injuries from a car accident. In some cases, the original person or people who caused the accident and injuries are also held responsible for any harm that results when a physician improperly treats the injuries.

In such cases, an attorney may call for a “Stuart instruction,” so called because it comes from the 1977 case Stuart v. Hertz Corporation. This instruction tells the jury that “a tortfeasor is responsible for additional injuries caused by the medical negligence of a physician treating the plaintiff for the original injuries.”

A recent appellate case illustrates some of the complications that occur with this rule. In that case, a woman’s vehicle was rear-ended by a male driver. She drove to the hospital complaining of neck and back pain and was diagnosed with whiplash. Although she got follow-up care, the woman still had pain four months later and asked an orthopedic surgeon for his opinion. He diagnosed a muscular injury and disc herniation from the accident and recommended she have a surgery.

What is “Forum Non Conveniens” in Florida?

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

Under Florida common law, a lawsuit that does not have much connection to Florida may be subject to “forum non conveniens,” which is Latin for “inconvenient forum.” It comes up only after a plaintiff is able to effect service of process of a lawsuit on a defendant who is present in Florida or has its principal place of business there or because the defendant has committed a tort in Florida.

Some plaintiffs “shop” for the best jurisdiction in which to sue the defendant–usually they pick the jurisdiction with laws that favor their side of the case. This problem can be fixed through the application of the forum non conveniens.

Forum non conveniens is a doctrine that addresses the problem of a local court having jurisdiction over a suit when the case could be fairly and more conveniently litigated in another jurisdiction. Since Florida tends to have better laws for plaintiffs than some overseas jurisdictions, the plaintiff practice of forum-shopping is particularly notable here.

Proving Wage Loss in Florida Personal Injury Cases

Published on: July 12, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Unfortunately, accidents on the road, whether you’re in a car, scooter, truck or walking around as a pedestrian, are all too common on Florida’s busy streets. One common kind of loss you might experience after a serious accident in which you are injured is lost wages. After an accident you may have to take time off from work to rest and recuperate. In severe accidents, you may be left with a temporary or permanent disability.

In Florida personal injury lawsuits, courts use a standard of reasonable certainty when looking at the facts of injury and causation. This is considered more critical than having reasonable certainty about specific losses arising from the injury.

While you don’t need hard, documentary evidence or file income tax returns to prove every earning with absolute certainty, it’s important to keep records. If you get into an accident, you should file your receipts, tax returns, and doctor’s notes into an earmarked file and turn them over to your personal injury lawyer. Similarly, if you have to see a vocational rehabilitation counselor, save any written notes or information that person gives you, in case it becomes relevant to your case.

In a recent case, an appellate court explained that the jury can make decisions regarding wage loss on the basis of credible testimony. The case arose when a man on his scooter traveled over a part of the pavement that was being resurfaced by a paving contractor and hit a manhole pipe.