South Florida Personal Injury Lawyers Blog

Florida Court Addresses Negligence Per Se Claim in Elevator Accident

Published on: August 24, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Recently, a Florida appellate court issued an opinion addressing, amongst other issues, whether negligence per se applied in the plaintiff’s lawsuit arising after an elevator accident. The plaintiff filed a lawsuit against the owner of a two-story building after suffering injuries when stepping onto an elevator in the building. Evidently, the elevator door opened while the elevator was still several inches below the door’s entrance, causing the plaintiff to fall into the elevator. The lawsuit alleged negligence, negligence per, and res ipsa loquitor. The defendant argued that they were not negligent, the plaintiff was comparatively negligent, and the incident was not the proximate cause of the plaintiff’s injuries.

The trial court granted the defendant’s motion for summary judgment, and the plaintiff appealed, arguing that the ruling was improper because there was a genuine issue of material fact. One of the primary issues on appeal was whether the building’s owner was liable under negligence per se.

Negligence per se is a legal theory that places liability on a defendant based on their violation of a statute. The theory applies in situations where the defendant engaged in conduct that violated a statute designed to protect against the type of injury the victim suffered. Historically, negligence per se decisions stem from the violation of a statute designed to protect a specific class of people, a violation of a penal statute, or a violation of statutes designed to protect the public.

Court Discusses Pain and Suffering Damages in Florida Personal Injury Lawsuit

Published on: August 20, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Recently, a Florida appellate court issued an opinion in a plaintiff’s appeal of a jury’s finding that she did not suffer permanent injury and was not entitled to pain and suffering damages.

The case arose after the defendant struck the plaintiff’s car as she was exiting the highway. According to the court’s opinion, at trial, the plaintiff, claimed that her emergency room doctor referred her to a treating chiropractor. However, the defendant introduced evidence that the plaintiff’s attorney referred her to her treating chiropractor. The jury returned a verdict awarding no damages for pain and suffering. The plaintiff appealed.

On appeal, the plaintiff contended that the trial court erred in allowing the defendant to argue that there was a referral relationship between the plaintiff’s attorney and chiropractor, resulting in a jury finding she was not entitled to pain and suffering damages.

Florida Defective Product Lawsuits Based on Recalled Hand Sanitizer

Published on: August 17, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Recently, the U.S. Food and Drug Administration (FDA) announced additional products to their ever-growing list of recalled hand sanitizers. According to a recent new report, the FDA explained that the majority of the recalled products lacked enough alcohol to adequately kills germs, or the products contained potentially deadly levels of wood alcohol. This information is particularly harrowing as there has been a record number of hand sanitizer sales in Florida because of the COVID-19 pandemic. These defective products can cause serious harm because of their ineffectiveness or exposure to potentially deadly ingredients.

As COVID-19 began to wreak havoc throughout the world, the Centers for Disease Control (CDC) advised the public to use an alcohol-based hand sanitizer and frequently wash hands. These measures should help reduce the number of germs that a person carries and transmits. In many cases, individuals use hand sanitizer at higher rates because it is a convenient option. This increased use only heightens the likelihood that individuals may experience the dangers of using these products.

The majority of effective hand sanitizers are comprised of ethyl alcohol; however, the recalled products contain methanol. Methanol is a type of wood alcohol that is regularly used to create pesticides, solvents, and fuel. This alcohol is typically toxic to humans and can be poisonous if consumed. Some products state that their hand sanitizers contain methanol; however, many others are mis-marked as containing ethyl alcohol. This mistake further complicates the recall as many consumers may not know if their product contains the dangerous ingredient.

Filing a Florida Personal Injury Lawsuit for Faulty Personal Protective Equipment During the COVID-19 Pandemic

Published on: August 13, 2020 | by Friedman Rodman Frank & Estrada, P.A.

As COVID-19 continues to spread quickly throughout Florida, the state’s nursing homes have witnessed unprecedented illnesses related to the virus. During this time, many nursing homes have failed to adequately protect their staff and residents from the viruses’ toll. Although some of the spread is uncontrollable, the Centers for Disease Control (CDC) provides regulations and guidance on how these facilities can manage and stop outbreaks. Despite a broad range of immunity that nursing homes and manufacturers of personal protective equipment (PPE) are given during this time, individuals who have suffered because of the negligence of these entities should contact a Florida product liability and nursing home negligence attorney to discuss their rights and remedies.

Recently, a national news source reported on a controversy over inadequate PPE that the Federal Emergency Management Agency (FEMA) sent to nursing homes to battle the COVID-19 crisis. Nursing homes and long-term assisted living facilities were included as benefactors of an effort to provide healthcare workers with PPE. However, when the facilities received the shipments, they were shocked to discover that the boxes included loose gloves in unmarked plastic bags, outdated surgical masks, and gowns without openings. Health officials advised these facilities to refrain from using the equipment as they are unaware of whether they have been compromised.

FEMA responded to the claims and stated that there were only a few shipments with outdated and ineffective equipment. Additionally, they claimed that the gear does meet federal standards but agreed to contact the private contractor and asked them to provide replacements. The PPE problem highlights the many issues that these facilities and their residents are facing with sufficiently managing the health and safety of their residents.

The Various Theories of Liability in Florida Dental Injury Cases

Published on: August 7, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Under Florida law, dentists and dental surgeons may be liable for medical malpractice if their negligence causes disfigurement, damage, or harm to their patients. Individuals who suffer injuries because of their dentist’s negligence must meet specific requirements to recover compensation. Generally, there are four elements to a Florida dental malpractice lawsuit, the duty of care the dentist owed the patient, whether they breached that duty, the injury the victim suffered, and the damages the victim incurred. These lawsuits require a thorough and comprehensive understanding of various substantive and procedural rules, and it is essential to contact an attorney to discuss how to pursue your claim successfully.

The first element of a dental malpractice claim requires the patient or their loved one to prove that the dentist owed them a duty of care. In these cases, the standard duty of care is that of which any other ordinary, prudent, similarly situated dentist would be under. A breach of the standard of care occurs when the dentist fails to meet this standard. However, in some situations, a patient may suffer an unwanted result that was not necessarily due to the dentist’s negligence.

Next, plaintiffs in these cases must be able to establish that there was a causal relationship between their injuries and the dentist’s breach. Essentially, the plaintiff must be able to provide evidence that their injuries would not have occurred but for the dentist’s negligent conduct. Many dental medical malpractice claims stem from failed procedures, erroneous extractions, nerve damage, tooth damage, disfigurement, and exposure to harmful chemicals.

Florida Court Addresses Plaintiff’s Evidentiary Burden in Lawsuit Against Cruise Line

Published on: August 5, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Recently, a Florida appellate court issued an opinion in a plaintiff’s negligence lawsuit against a cruise ship company. The lawsuit stems from injuries a woman suffered when she sat on a vanity chair while in her cabin on the cruise ship. When she sat down, the chair collapsed and caused her to fall to the ground. The woman sought medical attention at the cruise ship’s medical center, where she was given Tylenol for her pain. When she returned home, she sought treatment for continued pain she was suffering. Although she did not have a broken arm, she was diagnosed with tennis elbow.

The woman filed a lawsuit against the cruise company for their failure to inspect and maintain the cabin furniture, and their failure to warn her of the chair’s danger. She claimed that she did not need to meet the law’s notice requirement based on the doctrine of res ipsa loquitur.

The woman appealed after the lower courts ruled in favor of the defendants based on the woman’s failure to meet her evidentiary burden. The court discussed notice requirements in Florida personal injury lawsuits. The plaintiff argued that the cruise ship had constructive notice that the chair was dangerous, and even if she failed to establish notice, the doctrine of res ipsa loquitur negated the requirement.

The Applicability of the Set-Off Defense in Florida Car Accident Claims

Published on: July 29, 2020 | by Friedman Rodman Frank & Estrada, P.A.

In a recent opinion, an appellate court in Florida addressed the applicability of the set-off defense after a car accident victim filed a claim for damages with an insurance company. The plaintiff suffered injuries when an uninsured motorist crashed into his car, resulting in serious physical and property damage to the plaintiff. In response, the plaintiff filed a claim with his insurance company under the uninsured/underinsured (UIM) provision in his policy. The insurance company denied the claim, and the plaintiff filed a lawsuit for breach of contract.

A jury determined that the plaintiff was entitled to damages for his loss of earnings, medical expenses, and pain and suffering. Subsequently, the insurance company contended that the trial court erred in failing to set off duplicated benefits that the plaintiff obtained from other sources. The defendant asked the court to set off from the damages award, the amount of any settlements the victim received that duplicated any part of the verdict.

The court analyzed Florida’s set-off rules and concluded that the trial court should amend the verdict to reflect the duplication. After a car accident, injury victims may obtain benefits from more than one source for a single accident or claim. This often occurs when the negligent motorist or their insurance company settles or pays out damages for a portion of the victim’s losses. In most cases, the settlement amount specifies what exactly the payout covers. For example, the settlement amount may specify that the payments are for medical benefits or lost wages. Although, Florida’s laws allow double recovery, there are restrictions when there is a duplication of benefits.

What Is an “Open and Obvious” Hazard in a Florida Premises Liability Case?

Published on: July 27, 2020 | by Friedman Rodman Frank & Estrada, P.A.

To prevent injuries on their land, landowners must inform guests of any hidden dangers they might encounter. However, property owners will often try to escape liability by claiming the danger is open and obvious and, thus, they do not need to warn others about the hazard. The open and obvious doctrine provides that if a dangerous condition is so obvious and apparent to a reasonable person, the owner does not need to tell guests about the danger and is not liable if a person is injured after failing to notice the hazard.

A recent state supreme court case discussed whether a church was negligent after the plaintiff was seriously injured after tripping on the top step of the stairs. The plaintiff, despite previously using the steps a few minutes before, fell while carrying a casket out of the church. The plaintiff brought a premises liability lawsuit against the landowner, alleging the dangerous condition of the property caused his injury.

However, the defendant asserted that the condition of the top step was an open and obvious condition, meaning the church was not liable under a premises liability theory. The court relied on the specific facts of the case to make its determination: the top step was composed of a different material than the other steps, and the top step was an extra four inches higher than the others. Ultimately, the court concluded that because the top step’s look was different from the others, and the plaintiff had already used the steps before, the danger was open and obvious. Therefore the defendant was not liable for failing to warn the plaintiff.

What Constitutes a Florida Medical Malpractice Case?

Published on: July 23, 2020 | by Friedman Rodman Frank & Estrada, P.A.

When you head to an appointment with a Florida medical provider, you expect to be treated with respect and to get better soon. But what happens when you’re injured or hurt because of the health care service you receive? Can you sue for medical malpractice? Was it medical malpractice to begin with?

Medical malpractice cases in Florida are unique, in that they have their own requirements. When determining whether a medical malpractice theory applies, courts look to whether the injury arose out of the delivery of, or failure to deliver medical care or services by a health care provider. Healthcare providers in Florida include licensed physicians, osteopaths, podiatrists, optometrists, dentists, chiropractors, pharmacists, hospitals or ambulatory surgical centers. If the defendant is a health care provider under Florida law, then the case falls under medical malpractice and requires stricter procedural rules. Additionally, health care providers or facilities that are not expressly included within the definition of the statute can also be vicariously liable for acts of health care providers.

However, not all situations involving health care related services are necessarily considered medical malpractice in Florida. For example, in a recent state Supreme Court opinion, a plaintiff brought suit against her massage therapist after he allegedly sexually assaulted her during a massage. Before the assault, two separate customers had complained to the facility about the therapist’s conduct and how he had been inappropriate with them during their massages. The plaintiff sued the massage therapy company and claimed that it was negligent in its training, supervision, and retention of the massage therapist who assaulted her.

Florida COVID-19 Nursing Home Cases Are Rising

Published on: July 21, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Recent news reports indicate that although many of new Florida COVID-19 cases consist of younger people, the vast majority of deaths are linked to nursing homes. Florida COVID-19 cases have reached record heights since the state reopened. Unfortunately, this surge may have a deadly impact on vulnerable individuals, such as those older adults residing in nursing homes. In many states, including Florida, nursing homes have been pushing for legislation that provides immunity for COVID-19 related deaths. However, even in states where the bill has passed, the protection has limitations. Individuals whose loved ones contracted COVID-19 while residing in a Florida nursing home should contact an attorney to discuss their rights and remedies.

The Centers for Disease Control (CDC) has stated that these facilities should take steps to prevent the spread of COVID-19 into their facility. Engaging in safe practices could drastically change the likelihood of transmission within these facilities. However, nursing homes argue that they would experience an undue burden if they were responsible for COVID-19 deaths in their facility. As lawmakers address proposed legislation to limit nursing home liability for COVID-19 deaths, many argue that these facilities need more oversight, rather than immunity.

Government Accountability Office (GAO) reports on nursing homes found that over 80% of these facilities had infection prevention and control violations before the pandemic, despite regulatory practices. These violations included conduct that created serious risks to staff and residents. Inspectors found that many of these facilities failed to isolate sick residents and failed to ensure that personnel engaged in proper hand hygiene. Further, over half of the facilities with violations were previously cited for health and safety deficiencies.