South Florida Personal Injury Lawyers Blog

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.

Florida Appellate Decision Recognizes Importance of Accident Victim’s Right to Seek Counsel

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

The recent appellate decision in Howard v. Palmer illustrates that the courts recognize the importance of being able to hire an experienced, savvy personal injury attorney right away. In that case, an employee of Groupware ran a stop sign and crashed into the plaintiff’s car. The plaintiff sued for personal injuries in a negligence and vicarious liability lawsuit against both employee and employer.

Before trial, the plaintiff’s attorney made a motion to prevent the defense attorney from presenting evidence that on the day of the accident, the plaintiff contacted an attorney who referred him to a doctor. The plaintiff’s attorney believed that the defense attorney would ask all of the plaintiff’s doctors if they knew he had met with an attorney. The defense confirmed that this was its plan, claiming that plaintiff contacting an attorney the day of the accident created an issue as to whether he actually experienced a permanent injury or if it was a manufactured permanent injury.

The trial court ruled for the plaintiff and prohibited the defense attorney from asking questions about when plaintiff contacted an attorney. Nonetheless, when questioning the plaintiff’s treating physicians, the defense attorney asked one of the doctors if he knew that the plaintiff had seen an attorney before going to the first treating doctor. In a sidebar before the court, the attorneys disagreed about what the court’s ruling had been, and the plaintiff’s counsel brought up the case law he had brought up during the motion. That case law concerned a similar issue in which the court ruled inadmissible any evidence of a plaintiff seeing an attorney three days after an accident.

The trial court in the instant case agreed with the plaintiff and said it would give the jury a curative instruction. The plaintiff’s counsel next asked for a mistrial to sanction defense counsel for violating the court’s order.

Florida Legislative Ban on Texting While Driving

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

After four years of thinking about whether or not to ban texting, the Florida legislature has sent a texting-while-driving ban to Florida Governor Rick Scott this week. The House voted 110-6 to pass the ban, while the Senate voted 39-1 to approve the bill that the House had amended.

Critics of the ban say that this ban is a watered-down bill. It makes texting while driving a secondary offense, rather than a primary one. In other words, a driver has to also violate another law in order to be pulled over for texting. A driver who violates the ban for the first time can only be fined $30.00 plus court costs.

The ban permits cellphone records to be used as evidence only if an accident causes a death or personal injury. While this latter point is good news for those who have suffered a personal injury, it does not help those who are killed as a result of others’ negligence in texting while driving. This is a big enough problem in Florida that the ban probably should have been stronger. Thirty-nine states and D.C. already ban texting.

Most of us know someone who texts while he or she drives, even though studies show that texting while driving is incredibly dangerous. One in 7 adults has admitted he or she texts while driving. Texting while driving diverts a driver’s visual, manual and cognitive attention away from the road. In 2011, 23% of car crashes (which comes out to equal approximately 1.3 million) involved cell phone use. That year, 3,331 people in the United States were killed by a distracted driver (not just including those who texted, but anybody whose attention was fixed on something other than driving).

Florida Workers’ Comp Limitation Ruled Unconstitutional

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

A recent victory for injured Florida workers in a workers’ compensation case, Westphal v. City of St. Petersberg, has upset the insurance industry. In the case, a firefighter challenged an order denying his claim for permanent total disability benefits and the constitutionality of the entire system of workers’ compensation benefits. The firefighter (who was also a paramedic) suffered nerve damage in his legs that required spinal surgery and other treatment during the course of his work.

After the accident that gave rise to this claim, the firefighter’s employer, the City, accepted the claim and paid the firefighter benefits for total temporary disability. The firefighter was forced to abide by the City’s choice of doctors and their medical recommendations, or forgo workers’ compensation benefits that he needed. He required multiple complex surgical procedures.

Even after the most recent surgery, about three years out from the occurrence of the accident, the firefighter was not able to work or obtain employment. He had exhausted the state limit of 104 weeks of temporary benefits, but permanent total disability benefits only kicked in when he reached “maximum medical improvement.” His physicians could not determine his long-range medical prospects and could only speculate. He had not yet reached “maximum medical improvement” but his injuries were so severe that doctors also advised him not to work.

Accordingly, the firefighter was denied permanent total disability benefits. He fell into a “statutory gap” that is not rare, where he had surpassed the number of weeks he could claim temporary total disability, but he had not reached a state where the nature of his permanent disability could be assessed.