Recently, an appellate court issued an opinion in a personal injury lawsuit regarding an issue that often arises in Florida slip-and-fall cases. Specifically, the case deals with the quantum of evidence a plaintiff must provide in order to present a legally sufficient case. Here, the court affirmed the trial court’s dismissal of the plaintiff’s lawsuit, finding that the plaintiff did not provide sufficient notice of the location of her injury.

Cracked PavementThe Facts of the Case

The case stemmed from an accident that the then-79-year-old plaintiff suffered when she was walking and tripped on a crack in the cement. Shortly after her accident, the woman filed a notice of lawsuit with the state’s city council. About two years after her notice of lawsuit, the plaintiff filed a complaint, alleging the city’s negligence for failing to properly maintain its sidewalk. In the lawsuit, she noted the location was “on or near” an off ramp. The city filed a motion for summary judgment, arguing that the location the plaintiff provided was insufficient to put the city on notice, and since the statute of limitations had passed, the plaintiff should not be granted leave to amend her lawsuit.

Procedural History

In the motion for summary judgment, the plaintiff argued that the city is a “sophisticated entity” and could have found the location of her injury by looking at a map. However, the trial judge granted the motion for summary judgment and agreed that, although the decision was harsh, the plaintiff’s notice was inadequate.

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In some Florida personal injury lawsuits, the defendant can claim that the plaintiff should not be able to pursue a claim for compensation based on the fact that the plaintiff assumed the risks involved in participating in the activity that ultimately caused their injuries. This type of defense is common in cases involving skiing, sky diving, jet-skiing, and bungee jumping.

Skiing the PowIn Florida, there are two types of assumption of the risk:  express and implied. Express assumption of the risk generally involves a party’s acknowledgement of the risks involved prior to participating in the activity, usually through a release waiver or some other contract. Implied assumption of the risk, however, does not require a signed release waiver, and it can be established through risks that were either known at the time or should have been known.

A recent case illustrates how one federal court of appeals applied the assumption of the risk doctrine to preclude an accident victim’s ability to recover compensation for his injuries.

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Earlier this month, a state appellate court issued an interesting opinion in a case discussing an important issue that often arises in Florida personal injury cases. The case presented the court with the opportunity to discuss the concept of proximate cause, and in which situations a defendant’s negligent actions may be too distant from a plaintiff’s injuries to constitute legal causation.

ScooterThe Facts of the Case

The plaintiff was the daughter of a man who was killed in a traffic accident as he was crossing the street at a crosswalk on an electric scooter. Six years prior to the fatal accident, the plaintiff’s father was involved in another accident when he was the passenger in a vehicle. That accident occurred when a tire in the vehicle blew out, causing the vehicle to crash into a nearby telephone pole. As a result of the 2005 accident, the man’s mobility was severely limited, and he required an electric scooter to get around.

Prior to the 2011 accident, the man filed a lawsuit against the tire manufacturer. That lawsuit resulted in a defense verdict. However, prior to 2011, the verdict was overturned. The plaintiff’s father, however, never re-filed the case, although he could have done so.

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In an effort to curb the increasing number of Florida drunk driving accidents, Florida lawmakers have passed a law that allows for the victims of a drunk driving accident to hold the person who sold alcohol to the intoxicated person liable for their injuries. The law, called the Dram Shop Law, is actually an old vestige of the Temperance Movement from back in the early 19th century.

Pouring a PintUnder Florida’s Dram Shop Law, contained in Florida Statutes section 768.125, anyone who serves alcohol “willfully and unlawfully” to either a minor or a person who is “habitually addicted to the use of any or all alcoholic beverages” can be held liable. Florida’s Dram Shop Law is more limited than other states’, many of which provide for liability when someone serves a visibly intoxicated person.

A recent case illustrates how courts apply Dram Shop Laws, as well as the quantum of evidence that must be presented in order for a plaintiff to successfully establish liability.

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Recently, an appellate court issued a written opinion in a case overturning a verdict that initially favored a surgical patient’s medical malpractice case. The reversal of this verdict highlights a primary element that is necessary for Florida medical malpractice plaintiffs. Here, the Supreme Court held that without sufficient evidence to show that a plaintiff’s injury was directly due to a preventable error, there is no way to ascertain causation.

SurgeryPreventable Injuries in Florida Medical Malpractice Lawsuits

Medical errors are now one of the leading causes of death in the United States and contribute significantly to non-fatal medical injuries as well. Although some differences exist among state-specific medical malpractice laws, the overriding definition is similar among all states.

In Florida, for a plaintiff to have a favorable outcome in a medical malpractice case, the first requirement is evidence that a medical professional was providing services to the patient. Following this, there must be testimony from a medical expert that the medical negligence was a result of a divergence from the standard of care. Most importantly, in Florida, it is necessary to illustrate that this medical negligence was the direct cause of the injury to the patient. If the plaintiff cannot illustrate that the prevention of this medical negligence would have also prevented their injury, the claim remains speculative at best.

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Florida is known for its picturesque terrain and numerous options for outdoor recreational activities. Some common activities are water sports, horseback riding, hot air ballooning, hiking, and biking. Although these activities are often advertised as “guided” and “safe,” there are always some inherent risks involved in participating in them. Prior to participating in one of these activities, companies that provide these experiences will almost always have the patron sign a waiver of liability in the event that an accident does occur.

HorseLiability Waivers in Florida

Although Florida recreation companies cannot waive away all of their liability, there is a fair amount that they can avoid. Florida has various statutes that limit the applicability of waivers for specific activities, but this does not apply to all activities. These waivers essentially require the patron to affirm that they are aware of the risks involved in participating in the specific activity for which they are signing up.

Inherent risks are generally considered those that are common to the activity in which one is participating. For example, an inherent risk of horseback riding session would likely be falling off the horse.

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Recently, a state appellate court issued a written opinion in a personal injury lawsuit that was filed against a Florida nursing home. The case presented the court with the opportunity to discuss the validity of an arbitration contract that was signed by a resident’s wife prior to the resident’s admission into the nursing home.

Signing a ContractNursing Home Arbitration Contracts

When someone is admitted into a Florida nursing home, the nursing home will require that the resident sign a pre-admission contract outlining the expectations, rights, and remedies of the parties. More often than not, these pre-admission contracts contain a clause whereby the parties agree to submit any claims that may arise between the parties to binding arbitration, rather than filing a case through the court system.

What nursing homes rarely tell prospective patients is that an agreement to arbitrate claims cannot be forced upon a resident or their family. In other words, if a resident does not agree to arbitration but agrees with the remaining terms of the contract, the nursing home should not reject the resident’s application based on that fact.

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Most Florida personal injury cases are brought under the legal theory of negligence. That is, a plaintiff must establish that the defendant owed the plaintiff a duty of care that was violated, and this violation resulted in the plaintiff’s injuries. However, Florida dog bite cases are different in that they are analyzed under a strict liability framework.

Mad DogUnder a strict liability framework, courts do not assess the potential negligence of the defendant. In fact, it is irrelevant if a defendant was negligent. Instead, the plaintiff need only establish that the defendant owned the object or instrumentality that caused their injuries. In a dog bite case, this merely requires that the plaintiff establish ownership.

There is, however, a very specific defense to a Florida dog bite case. If a defendant dog owner can establish that there was a sign outside the enclosure where the dog was held, displaying the words “Bad Dog,” anyone injured by the dog cannot hold the owner liable. This exception, however, is quite narrow, as illustrated in a recent appellate decision.

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Under Florida law, all motorists are required to maintain a base level of insurance coverage in order to legally operate a motor vehicle. The purpose of this requirement is to ensure that, in the event a motorist causes a Florida car accident resulting in serious injuries or death, the motorist has sufficient assets to cover the costs incurred by the accident victim.

Car CrashInsurance companies, however, are for-profit businesses, and like other businesses, they rely on making a profit to stay in business. This means that insurance companies must take in more money each month in monthly premiums than they pay out in settled claims. As a result, insurance adjusters are trained to settle claims for as little a sum of money as possible. In some cases, insurance adjusters have taken advantage of less-than-savvy accident victims who may not know what their claim is worth. A recent case illustrates one court’s unwillingness to enforce a settlement agreement that it determined was unfair.

The Facts of the Case

The plaintiff was a passenger in a friend’s car when she was involved in a car accident. Police cited both the plaintiff’s friend as well as the other driver. After the accident, the plaintiff complained of pain in her neck and side.

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While dogs are known as man’s best friend, they can occasionally turn on humans and cause serious injuries. When a dog causes injuries to another person, the injured party may be able to seek financial compensation for their injuries through a Florida dog bite case.

Dog BiteUnder Florida law, the owners of dogs are strictly liable for any injuries caused by their animals. This means that anyone who has suffered a dog bite injury will not need to establish that the owner was negligent in any way; it is enough to prove ownership of the dog. That being said, this only applies if the victim of the attack is lawfully on the property of the dog’s owner. Additionally, if the victim of the dog’s attack is deemed to have been negligent in bringing about their own injuries – perhaps by taunting the dog – the victim’s ultimate award amount will be reduced by their own percentage of fault.

A recent dog bite case illustrates how strict liability plays out in practice.

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