South Florida Personal Injury Lawyers Blog

Florida Court Rules on Recent Premises Liability Claim

Published on: May 14, 2021 | by Friedman Rodman Frank & Estrada, P.A.

A federal appellate court recently issued an opinion in a Florida premises liability case, requiring the court to interpret a Florida statute. According to the record, the federal government operates an Air Force base, including a public beach with a public shower. A civil employee at the base and his wife filed a lawsuit for injuries the man suffered while using the shower. He alleged that the government allowed an algae film to grow on the shower surface and failed to warn the public of the danger. In response to the lawsuit, the government argued that the Federal Tort Claims Act (FTCA) and the state’s recreational-use statute, Fla. Stat § 375.251, provided immunity from the lawsuit. The plaintiffs argued that he was a business-visitor invitee because he worked at the Air Force base, and the statute did not apply. The lower court granted the government’s motion to dismiss, and the plaintiffs’ appealed.

The FTCA allows the government to be sued if a private person would be liable to the claimant under the law. Further, the state’s recreational use statute protects public outdoor recreation areas against ordinary premises liability. Under the statute, these qualifying owners do not owe a duty of care to keep their area safe for entry or use or to warn persons entering the area. In this case, the government argued that the statute bars the claim because the government is an “owner,” which provides the public access to the beach, an outdoor recreational area. Further, they argued that the plaintiffs were “persons” within the meaning of the state.

In an attempt to overcome the bar, the plaintiffs cited the statute’s subsection, precisely the term “others.” The plaintiffs suggested that the term referred to those invited onto the land for reasons other than business. They assert that there is a distinction between public invitees and business-visitor invitees. In reviewing the plain meaning of the term “others,” the court found that the term clearly and unambiguously refers to “persons.” The court found that even if the plaintiffs were business visitors invitees, which is unclear, the statute does not exempt that category of visitors. The court ultimately affirmed the lower court’s ruling, finding that the government did not waive its sovereign immunity.

Florida Court Addresses Learned Intermediary Doctrine in Failure-to-Warn Claim

Published on: May 12, 2021 | by Friedman Rodman Frank & Estrada, P.A.

A Florida federal court recently addressed a product liability claim against a medical device company and its parent company. The case arose when the plaintiff underwent surgery for her pelvic organ prolapse. Her physician implanted a polypropylene mesh designed by the defendants. After surgery, the woman experienced significant health issues that she attributed to the mesh device. Following the removal surgery, the woman and her husband filed a product liability claim against the defendants based on a failure to warn.

In response, the defendants moved for summary judgment based on the state’s learned intermediary doctrine. The doctrine imposes a duty on medical device manufacturers to warn of the product’s dangers to physicians instead of patients. In this case, the plaintiffs argue that the doctrine does not apply because the physician maintained a long-standing financial relationship with the defendants. Therefore, it was unreasonable for the defendants to expect the physician to warn patients of the device’s dangers. The plaintiffs asked the courts to create a “financial bias” exception to the state’s learned intermediary doctrine. The lower court declined to create such an exception and found in favor of the defendants. The plaintiffs appealed based on the failure-to-warn claim.

Under Florida law, plaintiffs pursuing a failure-to-warn claim must establish that the product’s warning was 1.) inadequate, 2.) the inadequacy approximately caused the victim’s injuries, and 3.) the victim suffered an injury from using the product. In cases involving a medical device, the physician acts as the “learned intermediary,” and it is their responsibility to weigh the device’s potential risks and benefits to their patients. For a plaintiff to succeed on a claim against the device manufacturer, they must prove that the doctor would not have used the product if the manufacturer included an adequate warning. Moreover, the chain may still be broken if the manufacturer provides an insufficient warning, so long as the doctor is aware and still recommends the device.

Recovering from Medical Negligence on a Florida Cruise Line

Published on: May 7, 2021 | by Friedman Rodman Frank & Estrada, P.A.

As the weather warms up, many are looking to make summer vacation plans in preparation for enjoying the sunshine. A cruise, for many families, seems like the perfect opportunity to get away from it all. Cruises, however, are not immune to accidents or medical issues taking place while onboard—and sometimes, recovering following an incident on a Florida cruise ship where the cruise line may have been partially or fully responsible for your injury can become a murky ordeal.

In a recent Eleventh Circuit opinion, a plaintiff sued a cruise line after suffering a heart attack on board that left him with lingering medical issues. While on the cruise, the plaintiff had extensive symptoms consistent with a heart attack, and physicians on the ship treated him until he was able to be admitted to a hospital a day and a half later. Following his treatment, he eventually got a pacemaker and has continued medical issues because of the damage to his heart. The plaintiff sued the cruise line for negligence and claimed that its medical staff failed to diagnose and properly manage his status. After trial, the jury awarded approximately $1.7 million in damages to the plaintiff. The cruise line moved for a new trial based on faulty instructions to the jury.

On appeal, the Court of Appeals held that the cruise line was not entitled to a new trial. The cruise line claimed that the lower court gave faulty instructions to the jury and refused to give maritime-specific instructions about medical negligence and the differences between cruise line medicine and land-based medicine. The Court of Appeals disagreed and held that the lower court properly administered instructions to the jury. Because district courts have broad discretion to formulate jury instructions on the basis of correct statements of law, the jury instructions may have been generally worded, the Court of Appeals reasoned, but they were correct.

Expert Testimony Under Daubert Standard in Florida Product Liability Cases

Published on: May 5, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Florida medical malpractice and product liability laws allow injury victims to hold negligent parties liable for their injuries. Many cases involve the interplay of both of these areas of the area, which enhances the complexity of these lawsuits. Florida’s strict medical malpractice and product liability laws impose significant burdens on injury victims. For example, claimants must prove that a medical professional breached a standard of care and the breach was the “proximate” or “actual” cause of the victim’s damages. However, in some cases involving defective products, there is no requirement to show the manufacturer breached a duty. Plaintiffs must meet all procedural and evidentiary requirements to avoid the dismissal of an otherwise legitimate claim.

In most cases, Florida medical malpractice and defective product claims hinge on an expert witness’s testimony. After several years of constant flux regarding the appropriate expert witness standard, in 2019, the Florida Supreme Court stated that the state follows the Daubert standard for the admission of expert testimony. Under Daubert, the trial judge maintains the discretionary gatekeeping function to determine whether an expert’s testimony is reliable and relevant. Specifically, the rule explains that an expert is qualified by knowledge, skill, or technical training and education to form an opinion. A court may qualify an expert if:

Their credentials will help the fact finder understand relevant evidence;

Florida Self-Driving Car Laws and Proving Liability After an Accident with an Autonomous Vehicle

Published on: April 30, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Self-driving cars undoubtedly provide the public with a sense of intrigue about the future of traveling in this country. Despite the potential benefits of these vehicles, self-driving vehicle technology is still its advent and poses many dangers to motorists and bystanders. These dangers are especially relevant in Florida, as the law no longer mandates that companies testing these vehicles ensure a human driver remain behind the wheel. Proponents of these vehicles and this law argue that it is necessary to promote innovative technology that may improve safety and travel. However, safety advocates continually cite the fundamental issues with allowing these vehicles on the road without an attentive driver.

Florida legislators have explained that this law only applies to autonomous vehicles equipped with technology to function safely without a human operator. While this caveat may prevent some of the inherent dangers of these cars, it does not address many concerns with allowing this novice technology on Florida roadways.

For example, a national news source described a harrowing accident involving a Tesla self-driving vehicle. The reports state that a self-driving car was involved in a fiery explosion after slamming into a tree. Authorities state that although the case is still under investigation, it seems that the car was traveling without a human driver behind the wheel. One of the passengers was in the front seat, and the other occupant was in the back passenger seat. The car was traveling at a high rate of speed when it slammed and wrapped around a tree. Responders worked for over four hours to put out the deadly flames. Tragically, both occupants died in the accident.

Court Addresses Arbitration Clause in Florida Amusement Park Premises Liability Lawsuit

Published on: April 27, 2021 | by Friedman Rodman Frank & Estrada, P.A.

An appellate court recently issued an opinion in a Florida premises liability lawsuit against a trampoline park. The case arose when a mother brought a lawsuit against an amusement park company (Park) on behalf of her son, who suffered injuries at the trampoline park. A friend of the family took the woman’s son to a trampoline park for a birthday party. While the boy was at the Park, he suffered serious injuries after falling off of a zipline. The woman filed a negligence lawsuit against the Park, and the Park moved to compel arbitration. The trial court denied the Park’s motion to compel arbitration, and the appeal ensued.

The Park requires ticket holders to sign a release which includes an assumption of risk, waiver of liability, and indemnification agreement. At issue is whether the arbitration clause in this agreement was valid and whether the parties agreed to the clause. The Park contends that because the family friend had “legal physical custody” of the minor, she could sign the arbitration agreement on his behalf. It further argued that any issues surrounding the authority of the woman to sign the agreement were an issue for arbitration, not a trial court.

Under Florida law, arbitration provisions fall under contract law and require contract interpretation. Disputes involving whether a case should proceed to arbitration require a court to look at three elements. These elements include (1) whether a valid written arbitration agreement exists, (2) whether an arbitrable issue is present, and (3) whether the parties waived the right to arbitrate.

Litigating Florida Bad Faith Insurance Disputes

Published on: April 22, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Under Florida’s no-fault insurance laws, drivers must carry Personal Injury Protection (PIP) coverage. This coverage pays a portion of the insured’s medical bills without consideration of fault. However, this protection only covers about 80% of a Florida injury victim’s medical expenses and even less for lost wages. As such, after an accident, Floridians often face an uphill battle in their efforts to recover the damages they deserve. In addition to personal injury lawsuits against the at-fault driver, victims may face challenges dealing with their insurance company. Despite their claims, insurance companies standing hinges on protecting their financial interests. Thus, insurance carriers will often improperly deny or delay claims, leaving victims in a tenuous financial position. Florida injury victims who find themselves in these precarious positions should contact an attorney to resolve these bad faith claims.

Recently, a Florida district court issued an opinion stemming from a dispute between the personal representative of an accident victim and an insurance company. The case arose after the victim suffered fatal injuries in a car accident with a volunteer employee of a not-for-profit corporation. The Estate obtained a judgment against the company the driver worked for; however, the Estate sought additional coverage with the not-for-profit’s insurance carrier. The insurance company asserted an “escape clause” in their coverage where they would not be responsible for incidents where another similar policy covers the not-for-profit. In this instance, the company had a GEICO insurance policy that covered the entity for liability because of the acts or omissions of an insured, such as the employee involved in the accident.

In this insurance dispute, amongst several issues, the Estate argued that the trial court improperly determined that the GEICO policy insured the not-for-profit. Generally, Florida insurance disputes require the court to interpret contracts. There are some general premises that courts use during this process:

Collecting Damages After a Florida Boat Accident

Published on: April 20, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Florida boating accidents tend to present injury victims with more hurdles than a typical motor vehicle accident. In addition to complex state and federal laws, these cases often involve special clauses in insurance policies that restrict recovery. Bodies of water are subject to various regulations; however, despite the presence of these laws, many Floridians eschew these imperative health and safety laws. This disregard of the law can lead to serious and life-long debilitating injuries.

The most common types of Florida boating accidents involving a collision with other vessels or stationary objects, flooding, grounding, and overboard falls. Many activities increase the likelihood of a boating accident. Some activities include alcohol or drug use, speeding, failure to vent, improper lookout, navigation violations, operator inattention or inexperience, and sharp turns.

For instance, the Fourth District Court recently issued an opinion in a case stemming from a Florida boating accident. In that case, the boat owner gave his son permission to operate his boat and allow others to operate the boat. On one occasion, the son took his boat out with three of his friends. All of the individuals on the boat were under 21-years-old; however, they consumed an unknown amount of alcohol. When they were heading back to shore, the owner’s son permitted one of the young women on board to operate the boat. The woman slammed the boat into a channel, and the owner’s son and another passenger were thrown off the boat. At the time of the accident, the boat was insured under the owner’s homeowner’s insurance policy. The passenger filed a lawsuit against the boat’s owner, his son, and the young woman.

Court Hears Case Stemming from Medical Malpractice Occurring on a Florida Cruise Ship

Published on: April 15, 2021 | by Friedman Rodman Frank & Estrada, P.A.

A Florida appeals court recently addressed several issues in an appeal stemming from an injury victim’s medical malpractice lawsuit against a cruise liner. The plaintiff, a Trinidad and Tobago citizen, departed from a Miami port for a five-day cruise. During the trip, the plaintiff became sick and visited the ship’s infirmary. The physicians determined the plaintiff was suffering from a heart attack and admitted him to the ship’s intensive care unit. They decided to refrain from administering certain medications, citing risk concerns.

Instead, they monitored him, and he was transferred to a hospital after porting in Miami. Subsequently, the plaintiff got a pacemaker. He filed a medical malpractice lawsuit against the cruise liner, alleging its medical staff failed to properly diagnose him, treat his illness, and evacuate him from the cruise ship. A jury awarded him $2,000,000 in damages, and the court reduced the damages by $300,000. Both parties appealed several issues, including the defendant’s contention that they were entitled to a new trial.

The defendant argued that they were entitled to a new trial claiming that the lower court erred in their jury instruction. The law provides that cruise lines must treat their patrons with “ordinary reasonable care under the circumstances.” In the context of maritime medical negligence, the law explains that cruise lines medical professionals will not always be held to the same standards as those onshore. In this case, the court instructed jurors that reasonable care is defined by “all relevant surrounding circumstances,” and medical negligence occurs when a physician does something “that a reasonably careful” doctor would not do “under like circumstances” or failing to do something a careful physician would do “under like circumstances.”

Florida Car Accident Lawsuits Involving Complex Insurance Issues

Published on: April 13, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Insurance coverage is a critical resource to motorists and provides many financial protections to those who suffer injuries in a Florida car accident. While insurance companies tout the benefits of their plans to consumers, they simultaneously operate to protect their own financial interests. These for-profit companies have a vested interest in maintaining their financial standing, and they often do so by wrongfully denying personal injury claims. Florida accident victims may face an uphill battle with their dealings with insurance companies. Attorneys play a crucial role in ensuring that injury victims overcome these hurdles and recover the damages they deserve.

There are many ways that insurance companies avoid paying out rightfully due payments to consumers. Although Florida is a no-fault state and injury victims submit claims to their own insurance company, the payments rarely cover the extent of a policyholder’s losses. Typically, claimants only receive around 80% of the total cost of their medical expenses, and the coverage does not include pain and suffering damages. Further, insurance companies may focus on a victim’s pre-existing medical condition to show that the accident is not responsible for the claimant’s injuries. Insurance companies contesting coverage will go as far as to question the claimant’s credibility and elicit evidence to show that the victim is not suffering as much as they say they are.

Although all of these tactics pose issues to clients, the most complex issues arise when insurance companies establish procedural mistakes that may reduce or eliminate a claimant’s damages. Florida Rules of Civil Procedure are a complicated set of procedural and substantive rules that require a thorough understanding of the law. Insurance companies may deny liability by pointing to the statute of limitations, jurisdiction and venue issues, and insufficient notice and pleadings. Courts may dismiss all or part of a victim’s claims because of a single error with any of these requirements.