South Florida Personal Injury Lawyers Blog

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.

Florida Appellate Court Reviews Issue of Privacy in Auto Accident Case

Published on: May 10, 2013 | by Friedman Rodman Frank & Estrada, P.A.

A Florida appellate court recently reviewed the issue of when a driver’s personnel file can be compelled for purposes of providing proof in an auto accident case in Walker v. Ruot. That case arose from a car accident in which an employee of Bright House Networks LLC injured the plaintiff couple by rear-ending their vehicle with a Bright House van.

The couple filed a lawsuit alleging negligence against both employee and employer. In the course of the lawsuit, the couple served on the employer a request to produce the personnel file of the driver. The employer objected that the personnel file included information irrelevant to the lawsuit and that producing the personnel file violated the driver’s right to privacy.

The couple filed a motion to compel the personnel file in the lower court. At the hearing for the motion they argued that the information contained in the file might support their claims against the employer for negligent entrustment, negligent hiring, or negligent retention. They also argued it might help them locate the employee to serve him with the lawsuit. The employer again objected as to the relevance of the personnel file, but agreed it did not have standing to assert its employee’s privacy rights.

The trial court did not conduct an in camera (private) inspection. It simply ordered the employer to produce the personnel file and ruled that the documents were relevant. The employer appealed this decision.

Florida Appellate Court Rules on Issue of Jury Selection

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

The Florida District Court of Appeal recently considered a case in which the plaintiff experienced brain damage and permanent disability as a result of medical negligence. The case illustrates the importance of having a good attorney on your side. The plaintiff was incapacitated after a doctor punctured his carotid artery while performing a catheterization procedure. The plaintiff’s guardian filed a lawsuit against the doctor on his behalf.

Before the trial, the court asked the parties’ attorneys to conduct a pre-qualification of the prospective jurors by directing them to answer written questions. The ninth question asked jurors whether they or their family members had ever been a party to a lawsuit. Two jurors answered no.

After a verdict for the plaintiffs, the doctor’s attorney investigated the jurors’ backgrounds. He moved to interview the two jurors who had answered no to the question about prior lawsuit involvement. When he learned that the two jurors had concealed their prior litigation experience when being questioned during the jury selection process, he moved for a new trial.