South Florida Personal Injury Lawyers Blog

Florida Appeals Court Rejects Plaintiff’s Argument in Recent Product Liability Case

Published on: November 16, 2022 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, the Fourth District Court of Appeals in Florida issued an opinion in an appeal involving a product liability case between a plaintiff that purchased a motorcycle, and the defendant, a motorsports dealer. The plaintiff was injured riding the motorcycle shortly after purchasing it when the motorcycle spun out of control. He brought suit against the defendant for negligence during the assembly and servicing process as well as in a product liability capacity. Following the hearing, the trial court granted the defendant’s motion to dismiss the plaintiff’s entire lawsuit based on an exculpatory clause contained within the sales contract that he signed when purchasing the motorcycle.

In 2018, the plaintiff purchased a Suzuki brand motorcycle from the defendant, signing a sales contract containing exculpatory language releasing the defendant dealer from liability. Shortly after buying the motorcycle, the plaintiff was involved in a serious accident and sustained serious bodily injuries. According to the plaintiff, as he was riding it, the front end of the motorcycle began to wobble and thrash, causing him to lose control and crash into another motor vehicle. Following the accident, he sued the defendant, claiming the dealer was negligent in assembling, setting up, servicing, repairing, and or inspecting the motorcycle prior to the sale. Additionally, the plaintiff sued the defendant in its capacity as a seller in the stream of commerce for strict product liability and negligent product liability arising out of manufacturing defects, design defects, and the failure to warn of those defects. At trial, the defendant moved to dismiss the defendant’s complaint based on the exculpatory clause he signed during the purchase. The plaintiff filed a response opposing the dismissal. The trial court subsequently granted the defendant’s motion and dismissed the plaintiff’s entire suit with prejudice based on the exculpatory clause.

On appeal, the plaintiff argues the trial court erred by dismissing the strict product liability counts because the exculpatory clause, due to its plain language, only applied to negligence-based claims. In the appellate court opinion, the appeals court found that much like the public policy driving Florida’s regulation behind licensing of building contractors and building construction standards, the public policy behind adopting the theory of strict liability is rooted in the concept of protecting the safety of consumers. As a result, the exculpatory clause, in this case, purporting to absolve a retailer of liability from strict liability in tort for injuries caused by defects in products it places on the market likewise violates public policy. As a result, the appellate court reversed the portion of the order dismissing the three strict product liability counts.

Florida Appeals Court Affirms Lower Court Decision in Workers’ Compensation Case

Published on: November 7, 2022 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, the First District Court of Appeals in Florida issued an opinion in an appeal involving a benefits dispute between an employer and an employee. The claimant has hypertension which was previously adjudicated as compensable. Following that adjudication, he filed a petition for benefits seeking payments of impairment benefits for hypertension. The Judge of Compensation Claims (JCC) issued an order granting the claimant’s claims for impairment benefits, attorney’s fees, and costs. The employer appealed the JCC decision.

The claimant’s hypertension was assigned a 10% permanent impairment rating by his authorized treating physician. The claimant’s independent medical examiner assigned a 50% permanent impairment rating. And the employer’s independent medical examiner assigned a 0% permanent impairment rating based on the claimant’s hypertension. Due to the conflicting medical evidence provided, the JCC appointed an expert medical advisor. The employer objected to the use of the expert medical advisor, asserting that no conflict in medical evidence existed. The JCC disagreed, reasoning that even if they accepted the employer’s argument that a conflict existed between the permanent impairment ratings of the claimant’s and the employer’s independent medical examiners. The expert medical advisor concluded that the claimant reached a 42% permanent impairment rating. The employer then appealed the decision.

The employer argued that the JCC was not correct to appoint an expert medical advisor in the first place and even if they were, whether the opinion offered by the expert medical advisor was proper. The employer states that the JCC erred in appointing the expert medical advisor as there was no initial disagreement in the opinions of the health care providers. Additionally, they contended that the JCC failed to address the employer’s objections to the expert medical advisor’s opinion. Finally, they object to the manner in which the expert medical advisor performed his assessment.

Florida Appeals Court Affirms Lower Court Decision in Sidewalk Negligence Case

Published on: November 7, 2022 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, the Second District Court of Appeals in Florida issued an opinion in an appeal involving a dispute between a patron, Marvel Martin, and a restaurant, Columbia Food Service. Mrs. Martin tripped on a hexagonal piece of pavement immediately outside of the restaurant doors and contends that Columbia Restaurant was responsible for maintaining the sidewalk. Specifically, Mrs. Martin contends that Columbia had joint and shared responsibility with the City of Tampa for the pavers located around the Restaurant. Stating that Columbia Restaurant had actual possession and control of the sidewalk and therefore assumed the duty to keep it free from dangerous conditions. They further state that Columbia Restaurant’s duty extends beyond the confines of the Restaurant because it invited customers to use that sidewalk for entrance and exit to the location.

On May 21, 2017, Mrs. Martin was having lunch with her sister at the Columbia Restaurant. As she was leaving, she tripped on an uneven hexagonal paver located directly beneath the awning that the Columbia Restaurant owns and maintains. The awning is attached to the Restaurant and is supported by pillars affixed above the sidewalk. The City of Tampa permits Columbia Restaurant to erect the awning, but the agreement makes no mention of the sidewalk. Columbia Restaurant has porters check the sidewalk for debris each morning, and each week, the porters power-wash the sidewalk and parking lot. Based on these facts, the trial court granted summary judgment in Columbia Restaurant’s favor.

Mrs. Martin appeals, stating that Columbia Restaurant has joint and shared responsibility with the City of Tampa for maintaining the sidewalk and that the Restaurant has actual possession and control of the sidewalk, making it their responsibility to keep it free of dangerous conditions. Additionally, Mrs. Martin contends that it is Columbia Restaurant’s duty extends beyond the confines of the Restaurant as it invites customers to use the sidewalk for ingress and egress.

Florida Appeals Court Reverses Lower Court Order in Workers’ Compensation Case

Published on: October 27, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Recently, the First District Court of Appeals in Florida issued an opinion in an appeal involving a workers’ compensation claim dispute. The claimant initially filed a Petition for Benefits (PFB) with the Division of Administrative Hearings (DOAH) in the Office of the Judges of Compensation Claims (JCC) requesting medical and indemnity benefits. The employer responded that the JCC had no jurisdiction over the PFB filed because both parties were bound by a collective bargaining agreement (CBA) that compelled a resolution of claims via arbitration.

Subsequently, the claimant voluntarily dismissed the PFB and filed a request for arbitration as required under the CBA binding the two parties. The arbitration hearing denied all benefits sought by the claimant. Shortly thereafter the claimant filed a motion for a rehearing with the arbitrator that was promptly denied. The claimant then filed a motion with the DOAH to dismiss the arbitration determination. The employer responded that the JCC lacked jurisdiction in this matter. Ultimately, the JCC determined that there was jurisdiction and vacated the arbitrator’s determination, and ordered a rehearing with the same arbitrator subject to the arbitrator’s willingness and availability. The employer then appealed the decision by the JCC.

The court of appeals found that there was no PFB pending before the JCC when the claimant filed the motion to vacate. While the claimant initially filed a PFB, he voluntarily dismissed it and proceeded to arbitration as required by the binding CBA. The dismissal of the PFB removes the jurisdiction of the JCC in this case. The appeals court notes that it had previously held that JCC does not have general jurisdiction and can only address issues specifically conferred by statute. When all claims asserted through a petition for benefits are dismissed, the JCC loses jurisdiction to address those claims. Here, the appeals court found that the claimant filed his PFB before voluntarily dismissing it and conceded to the CBA-mandated arbitration process. It was only once he was denied benefits through the arbitration hearing and dissatisfied with the results that he filed a motion to vacate the arbitration award with the JCC, which was ultimately an inappropriate forum that lacked jurisdiction. Ultimately, the proper course of action remaining to the claimant was to seek relief through a court with appropriate jurisdiction as defined by section 682.

Florida Appeals Court Dismisses Compensation Claim, Affirming Lower Court Decision

Published on: October 27, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Recently, the First District Court of Appeals in Florida issued an opinion in an appeal involving a workers’ compensation claim from a worker serving as a laundry attendant at a hotel who claimed to suffer a back injury lifting a mattress. According to the record, the attendant stated that he injured his back on May 22, 2019, while lifting and carrying mattresses to different rooms within the hotel. The attendant made several visits to the emergency room over the next few months, stating that he was experiencing stretching and tingling feeling on his side. His employers claim that the hospital visit records do not show a clear connection to the back or neck injury that the attendant states were due to his job. Additionally, the employer states that the attendant failed to file the claim in time.

The judge of compensation claims (JCC) denied the attendant’s claim and dismissed the petition, reasoning that the attendant’s evidence was insufficient for the claim. Both the attendant and the employer appealed the decision, with the attendant contending that the denial should be set aside for various reasons and the employer claiming that the merits of the claim should not have been heard in the first place due to the fact that the attendant did not give notice to the employer in a timely manner.

The Facts of the Case

According to the record, after the attendant claimed to be injured on May 22, 2019, he visited the emergency room on five separate occasions due to potential dehydration, tingling, and a stretching feeling on his side. In the first four of these instances, no mention of potential back or neck issues was noted in the official visit notes, and the attendant himself frequently mentioned dehydration as a potential cause for his issues, noting he was sleeping without an air conditioner. In the final visit on July 17, 2019, the attendant complained of “body aches” and in his discharge instructions, there is a mention of the phrase “cervical sprain.” A few days later, the attendant contacts the employer to file a claim.

Pedestrian Killed in Fatal Florida Hit-And-Run Crash

Published on: October 24, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Florida consistently ranks highly on the list of states with the highest number of hit-and-run accidents each year. Through August, Florida has already reported 52,791 hit-and-run car accidents throughout the state. Additionally, hit-and-run accidents have resulted in 11,494 reported injuries and 119 fatalities in Florida this year. There are many reasons why a driver may flee the scene after an accident. The primary motivating factor is likely that the driver wants to avoid the legal or financial consequences of the accident. Depending on the cause of the crash, drugs, alcohol, outstanding warrants, texting, or distracted driving, there could be serious legal ramifications, leading to the driver leaving the scene. Other reasons, such as lacking proper insurance, holding a commercial driver’s license, or driving the vehicle without permission, could result in significant financial consequences for the driver, leading them to flee the scene.

Florida drivers and pedestrians should be aware of some of the factors involved in calculating pain and suffering damages after an accident. Such elements can be used to determine the value and compensation in court after a crash or auto accident. (1) the type of injury and seriousness of the harm, (2) the amount of recovery time required, and (3) the necessary treatment required by the injury. These issues are related to each other. For example, generally speaking, if your injury is more serious, the recovery time and treatment required will be more elaborate, and will often result in greater compensation. Subsequently, if your injury is relatively minor and there is not a ton of pain associated with it, any damages awarded may be on the lower end. A recent news article discussed a fatal Florida hit-and-run crash that occurred in September 2022.

According to the news article, the accident occurred when an SUV struck a man crossing the street near the intersection of Krome Avenue and Southwest 320 Street, also known as Mowry Drive, in Homestead. The crash occurred early in the morning around 6:45 am. At the time of reporting, detectives were still searching for the driver, who fled the scene after striking the pedestrian. Surveillance videos show the car hitting the man crossing the street in the early morning hours before speeding off.

Man Killed in Fatal Multi-Car Florida Highway Crash

Published on: October 22, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Taking simple steps such as wearing your seatbelt, especially in the front seat of the car, can significantly decrease your risk of fatal injury in the event of a car crash. On the other hand, driving or riding in a car without a seatbelt can cause an increased risk of dying in the event of a crash by as much as 45%. Each year, thousands of Florida drivers and passengers experience severe to fatal injuries in car accidents due to their failure to wear seatbelts. While it can be tempting to unfasten your seatbelt while the car is in motion, remember that doing so could have a major impact on not only your health in the event of a crash but also your ability to recover financial damages in the event of a car accident.

Florida drivers and passengers should be aware that the state makes use of pure comparative negligence when it comes to determining a victim’s recovery in the event of a car accident. Pure comparative negligence can have a significant impact on damages collected after an accident and it can take a skillful attorney can navigate the legal theory successfully. A recent local news article discussed a fatal Florida car accident that occurred in September 2022.

According to the news article, the accident occurred when a 2019 Ford Flex driven by a 78-year-old Florida man crossed the median line on Highway 42 going northbound. After crossing the median line, the Ford Flex struck the rear tires of a semi-truck trailer that was headed southbound. After striking the semi-truck trailer, the Ford Flex then crashed into a Ford Explorer that had pulled into the shoulder to try and avoid the crash. The 78-year-old Florida man driving the Ford Flex was pronounced dead at the scene. Two other people involved in the crash were transported to hospitals.

Appellate Court Denies Appeal in Florida Cruise Ship Case

Published on: October 20, 2022 | by Friedman Rodman Frank & Estrada, P.A.

Recently, the United States Court of Appeals for the Eleventh Circuit issued an opinion in an appeal from the United States District Court for the Southern District of Florida involving a negligence claim by a plaintiff against a cruise ship operator following an injury on the ship. According to the record, the plaintiff states that the district court erred in finding that his amended complaint failed to allege sufficient facts in support of his negligence claim that the cruise ship operator was on notice for the alleged hazard that result in his injury. In response, the cruise ship operator filed a motion to dismiss, stating that the plaintiff failed to raise a plausible negligence claim due to inadequate evidence. The district court granted the motion to dismiss, holding that the plaintiff failed to satisfy the pleading standard in question. The appellate court upheld the district court decision, denying the plaintiff’s claims.

Facts of the Case

The plaintiff was a passenger on one of the defendant’s cruise ships, descending from Deck 5 to Deck 4 when he slipped on a wet or slippery transient foreign substance. The plaintiff claims that due to the fall, he suffered serious injuries, including a complete rupture of the right knee patella tendon. The injuries required surgical repair and physical therapy. The plaintiff alleges that the staircase in question is one of the most highly trafficked regions of the cruise ship and that it is flanked on both sides by shops staffed by dozens of crew members. Additionally, the plaintiff claims that several hundred guests and crew members traverse the staircase on a daily basis, many carrying drinks, resulting in frequent spills. As a result, the plaintiff claims that the cruise ship operating company had constructive notice of the dangerous conditions, and knew or should have known about the spills.

In an amended complaint, the plaintiff makes two claims against the defendant, (1) vicarious liability for negligent maintenance; and (2) vicarious liability for negligent failure to warn of a hazard. Regarding the negligent maintenance claim, the plaintiff alleges that there was actual or constructive knowledge of the hazardous conditions and that crew members failed to maintain the stairs in a reasonably safe condition. On the second claim, the plaintiff asserts that the cruise ship operator had actual or constructive knowledge of the conditions and that crew members failed to warn him of the danger before he fell and became injured.

Man Killed in Fatal Pedestrian Accident on Florida Turnpike

Published on: October 20, 2022 | by Friedman Rodman Frank & Estrada, P.A.

According to some metrics, Florida is the most dangerous state for pedestrians. In fact, researchers from the non-profit organization Smart Growth America (SGA) gave Florida a 201.4 rating on their pedestrian danger index, with Alabama coming in a distant second with a score of 174.6. This is in large part due to the fact that 5,893 people were killed in pedestrian accidents between 2000-2019 in Florida. In 2019, alone 713 pedestrians died in Florida. The SGA report found that older people, as well as those living in lower-income neighborhoods, are at the highest risk of being killed in pedestrian and car accidents. People of color are also at an exceedingly high risk of fatal pedestrian accidents. SGA reported that the number of fatalities among Black pedestrians was 82% higher than with white pedestrians from 2010-2019.

As people age, it can complicate their ability to avoid cars as pedestrians. Not only do older adults tend to physically move at a slower rate, but older people can often be injured or struck by cars because they have issues seeing or hearing incoming traffic. Additionally, many fatal crashes occur in the evening and away from city lights. Simply, the darker it is, the harder it is for motorists and drivers to see pedestrians on the road. A recent local news article discussed a fatal Florida pedestrian accident from September of 2022.

According to the news article, the accident occurred when an Orlando man exited his vehicle after crashing on the Florida Turnpike in Lake County. After exiting the vehicle, the man was struck and killed by an SUV in a separate collision moments later driven by a 24-year-old Florida woman. According to the Florida Highway Patrol, the fatal crash occurred on the Florida Turnpike at mile marker 276 around 9:45 PM following the initial crash. After the initial accident occurred, the driver then exited his vehicle, walked across the southbound lanes of the Turnpike, and crossed the concrete median, the crash report shows. As the victim entered the northbound inside lane of the Florida Turnpike, he was struck by the SUV. The man died at the scene after being struck by the SUV. According to law enforcement, both crashes are still being investigated.

Florida Sheriff Found Liable for Teen’s Death and Ordered to Pay $15 Million

Published on: October 12, 2022 | by Friedman Rodman Frank & Estrada, P.A.

By the virtue of their employment, law enforcement officers and other public safety officials often find themselves in situations that present a danger to themselves or other members of the public. When people are hurt or killed as a result of negligent police activity, it may be challenging to determine if the law enforcement officer or agency bears some civil responsibility for the loss. On one hand, police officers are human and are forced into dangerous situations very often, holding them accountable for any negligent acts would prevent police from properly performing their duties. On the other hand, law enforcement officers are tasked with protecting the public, and if an officer negligently or intentionally acts in a way that results in the death of an innocent person, there must be some consequences. Florida law addresses these considerations by operating within a framework that allows public employees, including police officers, to be sued personally for damages under some circumstances. A recently published news report discusses a jury verdict recently handed down in a wrongful death case filed by the family of a deceased teenager.

According to the news report discussing the recent jury verdict, the trial centered on the death of a 12-year-old boy who had been visiting the fair on the day he died. According to the report, police officers were called to the fair because some youths were causing a disturbance and committing small crimes. Although some of the youths were arrested or detained, the deceased boy was not accused of any criminal activity, however, the officer chose to eject him from the fair nonetheless. Instead of allowing the child to leave the fair through the exit, the officer forced him to go out of a side exit that had no safe pedestrian access and abutted a busy highway. When attempting to cross the highway, the boy was hit by a vehicle and was pronounced dead at the scene.

The boy’s family pursued a wrongful death claim against the officer and the department in Florida state court. According to the complaint, the officer was grossly negligent in forcing the young child out of the far and onto a busy highway, where he was ultimately killed. In responding to such claims, municipal law enforcement agencies often claim that qualified immunity protected them from being sued. Qualified immunity is a legal doctrine that protects public employees (including law enforcement officers) from legal liability for acts of negligence that occur while the employee is acting within the scope of their employment. Qualified immunity has been used in Florida to protect thousands of public employees from the consequences of their negligence, but the protection is not absolute.