In a recent case, the Third District Court of Appeals in Florida issued an opinion in an appeal involving a final summary judgment entered in favor of the defendants, appellees the University of Miami, Xue Zhong Liu, M.D. and Rebecca Rodriguez, L.P.N. After going on vacation in Florida, the patient complained of a severe earache and went to an ENT clinic operated by the University of Miami to seek medical assistance. Nurse Rodriguez took the patient’s blood pressure, which was 233/150, which constitutes severe hypertension. Dr. Liu asserts that he instructed the patient to go to the emergency room for evaluation and treatment while the patient claims that no such instruction was given. The patient did not go to the emergency room and nine days later, suffered a debilitating hemorrhagic stroke that was precipitated by an aneurysm due to the severe hypertension. The patient then filed suit, alleging that appellees caused her to have a stroke by failing to provide expeditious treatment of her severe hypertension, and by failing to inform her of the dangers of high blood pressure coupled with ear pain.

Facts of the Case

After seeking medical assistance from the ENT clinic affiliated with the University of Miami, the patient did not go to an emergency room. She claims that no instruction to go to an emergency room was given while Dr. Liu asserts that he instructed her to go to an emergency room for evaluation and treatment. The medical record reflects the following notation by Nurse Rodriguez: “Patient BP is elevated she stated it always comes up high. She has consulted with her Primary doctor.” The medical record is otherwise silent as to what occurred with respect to treatment for the hypertension. The record further reflects that Dr. Liu removed excess earwax from the patient’s ear and discharged her. Nine days later the patient experienced a debilitating hemorrhagic stroke triggered by an aneurysm due to her severe hypertension.

At trial, the patient filed a medical malpractice action against appellees alleging in her operative complaint that appellees caused her stroke by failing to provide expeditious treatment of her severe hypertension, and by failing to inform her of the dangers of high blood pressure coupled with ear pain. During the discovery process, the patient’s action transformed from a failure to treat case to a failure to refer case, arguing that the appellees should have referred the patient to the emergency room for immediate care, and that their failure to do so caused her eventual stroke. The trial court ultimately entered a final summary judgment in favor of the defendants, ruling against the patient. The patient then filed a timely appeal.

Continue Reading ›

In a recent case, the District Court of Appeal of the State of Florida Second District issued an opinion in an appeal involving a duty to warn or duty of reasonable care premise liability action between the Appellant, Melanie Chadwell Norris, and the Appellee, Alan Rodriguez. Ms. Norris sustained injuries after tripping on Mr. Rodriguez’s concrete driveway and claimed that she was a public invitee because she fell in the portion of the driveway located within a public right-of-way. The trial court categorized Ms. Norris as an uninvited licensee to whom Mr. Rodriguez owed no duty to warn of open and obvious dangers. The appeals court affirmed the lower court decision, rejecting the appeal by Ms. Norris.

After returning home from watching a movie, Ms. Norris walked across the street from her boyfriend’s house while her boyfriend went to get their dog for a walk. It was nighttime and dark outside. After crossing the street, Ms. Norris attempted to cross over Mr. Rodriguez’s property to access a public sidewalk. Ms. Norris allegedly tripped over the corner of the apron of the driveway where the concrete of the driveway was broken and raised, sustaining injuries in the process. Ms. Norris then sued Mr. Rodriguez for her injuries, claiming that she was a public invitee on the property and that Mr. Rodriguez owed her a duty to use reasonable care in maintaining his property in a reasonably safe condition. At trial, both parties moved for summary judgment on liability, and the court granted final summary judgment in favor of Mr. Rodriguez, holding that Ms. Norris was at best an uninvited licensee when she entered his property. Ms. Norris then filed an appeal.

On appeal, Ms. Norris argued that she fell in an area of Mr. Rodriguez’s driveway that was located within the county right-of-way en route to the public sidewalk. The appeals court disagreed, finding that Ms. Norris attempted to cut across Mr. Rodriguez’s driveway for her own fancy, to reach the public sidewalk to walk her dog. The court further states that there was no evidence that Mr. Rodriguez held his property open to the public. The appellate opinion states that as an uninvited licensee Mr. Rodriguez owed Ms. Norris a duty “to refrain from willful misconduct or wanton negligence . . . and to refrain from intentionally exposing [Ms. Norris] to danger”—there is no evidence that Mr. Rodriguez breached these duties in the present case. The appeals court affirmed the lower court decision, striking down the appeal.

In a recent case, the Third District Court of Appeals in Florida issued an opinion in an appeal involving a negligence case between plaintiffs, Anny K. Berastain and her daughter, Natalie, and the defendant, Miami-Dade County (the County). The plaintiffs filed a negligence action following injuries suffered by Natalie while she was in the care of the County’s after-school program. The trial court denied the County’s motion for a directed verdict, new trial, and remittitur. The County then appealed following a final judgment after a jury verdict in favor of the plaintiffs. The appellate court was unimpressed by the appeal and affirmed the final judgment as well as the trial court’s orders denying the County’s motion for directed verdict, a new trial, and remittitur.

Facts of the Case

According to the allegations at trial, on May 13, 2015, Natalie, who was seven years old at the time, was injured as a result of the County’s negligent supervision of the children in her after-school program. According to the operative complaint, the children were engaged in disorderly and dangerous practice, and the County failed to properly supervise them. At trial, the County denied that it breached any duty to Natalie or that any such breach caused her injuries. Multiple witnesses testified at the three-day trial, including Natalie, Ms. Berastain, and the County employee who was supervising Natalie on the day of the incident, Monique Perez. Ultimately, the jury determined that the County was 95% negligent and that Natalie was 5% negligent and subsequently awarded damages of $3,954.84 for past medical expenses, and $105,000 for Natalie’s past pain and suffering.

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 firefighter who suffered a heart attack and subsequently received a heart transplant after being diagnosed with COVID-19. According to the record, the firefighter was hired by Seminole County as a firefighter in 1993 after a clean pre-employment physical. In the early 2000s, he suffered cardiac problems that Seminole County accepted as compensable. Following his diagnosis, he received yearly treatment. In December of 2020, the firefighter tested positive for COVID-19. In January of 2021, he suffered a heart attack. After multiple surgeries, he received a heart transplant. Following his procedures, the firefighter filed a Petition for Benefits seeking indemnity and medical benefits on grounds that his heart attack stemmed from “heart disease” and thus the statutory presumption of work causation under section 112.18 applied to his case. Initially, Seminole County conditionally accepted the heart attack as compensable, but the county later denied compensability.

The Facts of the Case

The firefighter sought compensability under section 112.18.2 while Seminole County asserted as a defense, among others, that the claim was denied in its entirety because the criteria for the presumption were not satisfied. At the merits hearing, it withdrew the defense and stipulated that section 112.18 applied and that the worker was entitled to the statutory presumption of work causation. As a result, the sole issue before the Judge of Compensation Claims (JCC) was whether Seminole County successfully rebutted the presumption of work causation. At the hearing, the JCC accepted Seminole County’s argument that COVID-19 caused the worker’s heart disease, heart attack, and heart transplant. However, the JCC also found that Seminole County failed to rebut the presumption of work caused by proving that the worker contracted the virus outside of work. The JCC summarily denied Seminole County’s motion for rehearing.

Continue Reading ›

In a recent case, the District Court of Appeals of the State of Florida Fourth District issued an opinion in an appeal involving a premises liability action arising from a slip-and-fall incident at a restaurant. The suit was between Elizabeth Sentz, the Appellant, and Bonefish Grill, LLC (Bonefish Grill), the Appellee, arising from an incident where Sentz slipped and fell after a brunch at a Bonefish Grill location.

Facts of the Case

The issue arose when Sentz went to a Bonefish Grill location with four friends for brunch. The group was at the Bonefish Grill for a couple of hours, and Sentz had something to eat and drink. Near the end of her visit, Sentz visited the restroom. She slipped on water on the floor about eight to 12 feet from the bathroom door. The flooring was tile, with the look of hardwood. She described the area where she fell as a dining area separated by a wall from where she was seated with her friends. Prior to her fall, Sentz did not see the liquid. She did not know how that liquid got onto the floor, and how long the liquid had been on the floor before her fall. The puddle of liquid had a diameter of about 12 to 18 inches. She saw pieces of melted ice in the puddle.

Prior to returning to her table, a server came around the corner and Sentz notified her of the spill, telling the server that she had fallen. The server replied that she was aware of the spill and had meant to clean it up before. Other than that interaction, Sentz did not speak with the server at any other time. Sentz argued sufficient record evidence showed that BFG was aware of the dangerous condition, as the female server told Sentz that she was already aware of the presence of liquid and had meant to return to clean it prior to Sentz’s fall.

Continue Reading ›

From year to year, Florida is consistently one of the states with the most annual traffic accidents. One of the most common ways to measure the risk of fatal car accidents from state to state is the metric of deaths per 100 million miles traveled within a particular state. This statistical measurement is helpful for calculating driving risks for various states while controlling for disparities in population from state to state. According to the Insurance Institute for Highway Safety, the deaths per 100 million miles traveled within Florida is 1.60, placing it ahead of all but a few other states in the nation when it comes to drivers and passengers killed in car accidents.

Fatalities in Florida car accidents have been on the rise since 2018, and currently, nearly 40% of all Florida vehicle crashes result in injuries. Accidents occurring on highways can be especially devastating due to the higher speed limits on highways, resulting in more serious outcomes than crashes occurring at slower speeds. The harm isn’t reserved for people in cars either. Florida sees a significant amount of pedestrian deaths and injuries stemming from car accidents. Drivers should always be aware of their surroundings and be cautious of pedestrians walking and interacting around the road.

When it comes to vehicle accidents, drivers and passengers in Florida need to be aware of the variety of factors that can be used to calculate pain and suffering damages after a car collision. These factors include but are not limited to the injury category, the time required for recovery, treatments, and the severity of the crash. These different elements can help pinpoint the necessary compensation in court after a car crash. Many of these factors are related, as the more serious the crash, the more likely the time to fully recover will be longer. A recent news article discussed a recent dangerous crash in Miami-Gardens where impaired driving was a suspected cause.

Recently, the district court of appeals for the State of Florida Fourth District issued an opinion in an appeal involving a negligence claim by the appellant, Ebsary Foundation Company (Ebsary), against the appellee, Thomas C. Servinsky and Marie L. Servinsky. The Severinskys punitive damages claim is based on the allegation that Ebsary negligently hired Michael Pool (Pool) and gave him a company vehicle. While in that company vehicle, Pool crashed into Thomas Servinsky and caused significant injuries. The Servinskys filed a negligence claim against Ebsary. The circuit court issued an order granting Servisnky’s motion for leave to amend to state a claim for punitive damages. Ebsary appealed.

Facts of the Case

In October 2016, Ebsary hired Pool as a superintendent and provided him with a company vehicle. In December of that same year, Pool was driving that company vehicle when he crashed into Servisnky, who was also driving. The crash totaled both cars and caused significant injuries. Servinsky and his wife sued Ebsary, Pool, and the Geico General Insurance Company. The Servinskys filed an amended complaint alleging, in part, negligence against Pool, vicarious liability against Ebsary, and negligent hiring against Ebsary.

The first amended complaint also included a claim for punitive damages against Pool. The circuit court granted Servinsky’s motion for leave to amend the complaint to include the punitive damages claim against Pool and the negligent hiring claim against Ebsary. Later the Servinskys again sought to amend their complaint to assert a claim for punitive damages against Ebsary. The circuit court allowed the amendment and Ebsary appealed shortly after.

Continue Reading ›

Speeding is one of the main causes of car accidents throughout the country. High-speed driving increases both the severity and the likelihood of car crashes. Driving at higher speeds makes it more difficult to react to mistakes on the road from yourself or other drivers, such as quickly stopped cars and rapid deceleration. Additionally, higher speeds lead to more serious crashes when drivers do collide with other vehicles or obstacles. Florida is no exception, with the state experiencing extremely high levels of car accidents and auto fatalities. According to a report from the Florida Department of Highway Safety and Motor Vehicles (FDHSMV), in 2021, car accidents spiked throughout Florida after two straight years of decline. Throughout 2021, Florida saw 401,170 total car accidents. Additionally, approximately 40% of car accidents in Florida result in fatalities. The FDHSMV found that fatal car accidents have been on the rise throughout Florida. A recently published news article discusses a dangerous multi-car crash in Okaloosa County.

According to the news report, the accident occurred in the evening on Friday, November 3, when a black Jeep traveling north on State Road 4 nearly collided with a white Chevy that was stopped. The driver of the black Jeep nearly collided with the rear of the white Chevy, swearing into the southbound lane, crashing head-on with a white Hyundai. The spinning black Jeep then struck the white Chevy. According to the Florida Highway Patrol stated that the crash resulted in serious and critical injuries for both the driver and passenger of the black Jeep. Authorities shut down State Road 4 for an extended period of time for roadway cleanup, and the investigation is still ongoing.

In Florida, surviving family members can sue for wrongful death following a fatal car accident by filing a lawsuit in a civil court. Prior to filing a claim, the family members need to gather evidence to support the claim, prove liability, determine the value of their claim, meet the statute of limitations, and then file the claim with the court. According to Florida statutes, a wrongful death claim brought by surviving family members of a car passenger can result from accidents where the death is caused by “the wrongful act, negligence, default, or breach of contract” of another party. An attorney can evaluate the details of your case and determine if you are eligible to file a wrongful death claim based on the details of the case.

Recently, the United States Court of Appeals for the Eleventh Circuit issued an opinion in an appeal involving a negligence and vicarious liability claim by the Plaintiffs-Appellees, the estates of four women who died in a car accident, against the Defendant-Appellant, Discount Rock & Sand, Inc. Following the fatal car accident, the women’s estates sued Carlos Manso Blanco, the driver who rear-ended their car, for negligence, and the estates sued Blanco’s employer, Discount Rock & Sand, Inc., for negligently entrusting the company’s truck to Blanco and for vicarious liability for Blanco’s negligent driving. After the estates and Blanco settled, the district court ordered the estates to file a stipulation of dismissal under Federal Rule of Civil Procedure 41(a), which they did. Based on the stipulation, the district court ordered the dismissal of the claim against Blanco. The remaining claims against Discount Rock went to trial, and the jury found the company liable and awarded nearly $12 million in damages to the estates. Discount Rock then appealed the judgment.

Facts of the Case

In March 2018, four Spanish citizens vacationing in the Florida Keys were killed in an automobile accident. The four women were traveling northbound on U.S. Route 1 (the Overseas Highway) and stopped near mile marker 79 to turn left into a scenic viewing area. Two vehicles, driven by Cheyenne Del Okeyes and Eduardo Ponce, passed the women’s Nissan Rogue sport utility vehicle on the righthand shoulder. But a third vehicle—a truck outfitted with a large tank holding water and sewage and hauling a port-a-potty—slammed into the Nissan. The truck, which was owned by Discount Rock and driven by its employee, Blanco, propelled the Nissan into oncoming traffic, into the path of a recreational vehicle driven by Daniel Pinkerton. All four women died at the scene.

The women’s estates sued Blanco for negligence and Discount Rock for negligent entrustment and for vicarious liability for Blanco’s negligence. The estates sought compensatory and punitive damages. The estates and Blanco settled, while the remaining claims against Discount Rock proceeded to trial. At trial, the jury found Discount Rock liable and awarded nearly $12 million in damages to the estates.

Continue Reading ›

In a recent case, the Florida Supreme Court issued an opinion in an appeal involving a certified question about whether a personal injury damages award must be reduced by a payment the plaintiff received to settle a bad faith claim against his uninsured motorist insurance carrier. The two laws at issue in the case were sections 768.041(2) and 768.76(1), Florida Statutes (2012).

The Respondent/plaintiff (Respondent) was badly injured in a car crash. Following the accident, he sued the Petitioner/defendant (Petitioner) bringing a vicarious liability claim based on the Petitioner’s co-ownership of the other automobile involved in the crash. Additionally, the Respondent also sued his own uninsured motorist insurance carrier to recover policy benefits for statutory bad faith damages. The Respondent and his insurer settled prior to the trial for $4 million. The subsequent trial against the Petitioner resulted in a $30 million jury verdict for the Respondent. The Petitioner then asked the trial court to set off the pre-trial $4 million insurance settlement against the damages award, but the trial court denied the motion.

On appeal, the Second District Court of Appeals affirmed the denial of the setoff request. Additionally, it certified a two part question: Is a settlement payment made by an uninsured motorist insurer to settle a first-party bad faith claim subject to setoff under section 768.041(2) or a collateral source within the meaning of section 768.76? The appeals court answered no to both parts of the question, ultimately holding that neither statute authorized a setoff in the present case. The appellate decision explained that writing on a blank slate, it would have found the Petitioner entitled to a setoff under section 768.041(2), but it decided that this Court’s case law precluded that result.

Contact Information