South Florida Personal Injury Lawyers Blog

Court Addresses Foreseeable Zone of Risk in Florida Wrongful Death Lawsuit

Published on: May 8, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Recently, a Florida appellate court issued an opinion in a consolidated appeal arising from the tragic mass murders at the Pulse nightclub. The facts indicate that the shooter entered the nightclub shooting and injuring fifty-three patrons and killing forty-nine others. The survivors and decedents’ representatives filed a lawsuit against the company that hired the shooter to work as a “Custom Protection Officer.” The plaintiffs alleged that the defendant breached their duty to engage in an appropriate investigation of their prospective employees before hiring them, and this negligence created a foreseeable zone of risk to the general public.

In support of their claim, they provided evidence that the defendant knew that the man was dismissed from a corrections officer training class for making statements suggesting that he would bring a gun to class. Despite this knowledge, the defendant hired the man for a position that required him to obtain a Class G firearm license. The license requires a psychological evaluation, and the defendants submitted a fraudulent one on behalf of the man.

While the man was working for the company, the Sheriff’s Department demanded that the defendant terminate the man because he continually threatened his colleagues and claimed to be associated with various terrorist groups. About two weeks before the shooting, the man tried to purchase ammunition from a licensed gun dealer, but he was turned away. A week later, he brought his Class G license to a different retailer and purchased the guns that he used for the mass shooting. The plaintiffs maintain that the defendants owed them a legal duty because they were in the foreseeable zone of risk that the defendants created.

Court Addresses Hotel Lifeguard Requirement in Florida Wrongful Death Lawsuit

Published on: May 6, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Recently, an appellate court issued its opinion in an appeal stemming from the tragic death of a man in a Florida hotel swimming pool. The man’s wife filed a wrongful death lawsuit against the hotel alleging, among other issues, that the hotel was responsible for the death of her husband because they failed to hire professional lifeguards to supervise its swimming pool.

According to the court’s opinion, the man was a guest of the hotel when he entered the swimming pool, which was operated and maintained by the hotel. While the man was swimming, he became submerged and died from drowning. His wife alleged that that the hotel breached their duty to provide and maintain a reasonably safe swimming pool and failed to protect their guests from unreasonable risk of physical harm. During the trial, the court provided the jury with an instruction that Florida law had no legal duty to “post a professional lifeguard at its pool.” The woman appealed the jury instruction and the trial court’s ruling granting the defendant summary judgment.

Under Florida law, negligence occurs when a person or entity fails to exercise reasonable care by engaging in a behavior that a reasonably careful person would not do, or failing to do something that a reasonably prudent person would do under similar circumstances. Generally, trial courts maintain the discretion to determine whether a jury instruction is appropriate, and instructions should not be overturned on appeal, unless there is a showing of prejudicial error.

Nursing Homes Ask Florida Governor for Protection Against COVID-19 Lawsuits

Published on: April 30, 2020 | by Friedman Rodman Frank & Estrada, P.A.

According to a news report, earlier this month, the Florida Health Care Association (FHCA), asked Florida Governor Ron DeSantis to provide health care facilities and providers with sovereign immunity for lawsuits related to the COVID-19 outbreak. The request asked the Governor to provide them with civil and criminal protection for any claim for damages related to their act or omission while providing healthcare services during the COVID-19 crisis. Further, the letter included a request for immunity for these entities and professionals if they are arranging or providing health care services.

Florida code defines health care facilities as agencies that are authorized to provide health care services, such as hospitals, long-term care facilities, and nursing homes. The code also includes any site that provides health care services related to the COVID-19 outbreak. FHCA’s proposal does not include claims that are the result of any willful or intentional criminal or reckless misconduct, gross negligence, or intentional infliction of harm. However, it does request protection from acts and omissions related to staff or resource shortages.

Florida has the highest percentage of older adults in the country and almost 700 licensed nursing homes. Research suggests that those older adults that live in long-term supportive housing and nursing homes are at risk for abuse and neglect. Although many variables make the rate challenging to quantify, studies suggest that at least 1 in 10 residents over the age of 60 have suffered abuse or neglect in a nursing home. Additionally, about 20 percent of Florida COVID-19 deaths are residents of nursing home facilities.

The “Substantial Contributor” Standard in Florida Product Liability Claims

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

Individuals who suffer injuries because of a defective or unsafe product may hold the product designer, manufacturer, or distributor liable for their damages. Florida product liability laws cover many industries and products, including pharmaceuticals, nutrition supplements, food products, automotive parts and products, housewares, recreational equipment, infant products, and construction materials and tools. Florida permits product liability plaintiffs to recover for their injuries under three types of claims; negligence, strict liability, and breach of warranty.

Breach of warranty claims arises when a plaintiff argues that the designer or manufacturer breached its express or implied warranty claims regarding their product. Strict liability claims do not require a plaintiff to prove fault, but only that the defective product caused their injuries. Negligence claims, on the other hand, require the plaintiff to establish that they suffered damages because the defendant negligently designed, manufactured, or marketed their products. To recover for their injuries, plaintiffs must be able to prove causation-in-fact and foreseeability. When there are multiple defendants or causes for the plaintiff’s injuries, plaintiffs must also be able to prove that the defendant’s negligence was a “substantial contributing” factor to their injuries.

For example, a Florida appeals court recently issued its opinion in a case stemming from injuries a man suffered after exposure to benzene products during his lengthy career as a carpet and flooring installer. The man filed lawsuits against multiple defendants, arguing that he developed bone marrow and blood diseases because of long term exposure to benzene products. The defendants successfully moved for summary judgment, contending that the man failed to establish which product caused his illness. The man responded that the defendants were relying on the incorrect “but for” standard instead of the appropriate “substantial contributor” standard.

Baby Formula Maker May Be Putting Florida Infants in Danger

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

Recently, a national news report described several parents’ accounts of issues they encountered while using a popular, patented baby formula dispenser. Parents across the United States issued complaints to the company after pediatricians discovered that some infants consuming bottles from this machine were failing to gain weight and subsequently diagnosed with “failure to thrive.” Currently, there are more than 100 complaints against the company and various product liability lawsuits. Florida parents and caregivers who believe their child has suffered injuries or illness because of a defective product should contact an experienced Florida injury attorney to discuss your rights and remedies.

This particular product, Baby Brezza, is widely available at various physical and online retailers, and markets itself as the “most advanced” way to mix and create baby formula and water. However, many babies who used the product began to exhibit signs of hunger, including, temperament changes, sleep disturbances, and weight changes. One couple rushed their child to their doctor, where tests revealed that the baby was not consuming enough nutrients and calories. The culprit was the baby formula maker, as it was dispensing incorrect ratios of water to formula, resulting in a watery nutrient-deficient final product.

There are currently two class-action lawsuits against the company, in addition to various individual claims. The company’s marketing team stands by its products and contends that they precisely calibrate their machines to work with thousands of formulas. They further argue that they regularly test their devices, and any issue is likely the result of user error, including failure to maintain the product by cleaning the machine.

Conflicting Expert Opinion Makes Summary Judgment Improper in Florida Medical Malpractice Lawsuit

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

Under Florida medical malpractice laws, individuals who suffer injuries because of a negligent physician, nurse, or another healthcare provider may file a lawsuit against the offending party to recoup their damages. These legal proceedings are often adversarial and onerous and require a thorough understanding of complex statutes and regulations. Even though many Florida medical malpractice cases will end in a negotiated settlement, the preparation leading up this result is the same as if the case is going to trial.

In many situations, a party may ask the court to grant them summary judgment and rule in their favor before the trial even begins. This is an integral part of pre-trial proceedings, and these motions often rely on expert witness testimony. The parties will typically present the testimony of expert physicians that will testify to applicable standards and whether there was a breach of the standard of care that the defendant owed. The party opposing the motion for summary judgment must be able to establish that there is a genuine issue of material fact that must be resolved. The sufficiency of a motion for summary judgment often hinges on the expert’s opinion.

For example, recently, a Florida medical malpractice victim appealed a lower court’s ruling granting a hospital’s summary judgment motion. In that case, a man filed a lawsuit against a medical facility, alleging that they were negligent during his cardiac bypass surgery. The man argued that he suffered severe injuries, including a double amputation of his legs, because the facility failed to remove recalled heparin from their medical supplies. The hospital moved for summary judgment, reasoning that the victim did not prove that the facility administered contaminated heparin to the plaintiff.

Establishing Liability in Florida Defective Product Lawsuits

Published on: April 16, 2020 | by Friedman Rodman Frank & Estrada, P.A.

When individuals purchase or use products, they naturally expect the product to work as advertised and, if used as directed, not cause the person harm. If someone is injured by a dangerous product, Florida’s product liability laws allow victims to recover for their damages. Under Florida law, manufacturers, retailers, and wholesalers of a defective product may all be defendants in a product liability lawsuit.

Generally, there are two main theories that a Florida plaintiff may pursue against a defendant: negligence, and strict liability. Claims often arise from design defects, manufacturing defects, label defects, breach of warranty claims, fraud, and misrepresentation. The negligence theory allows Florida product liability injury victims to recover damages if they establish that they suffered injuries because the defendant was negligent in some aspect of the design, production, or marketing of the defective product. Under a strict liability theory, a Florida injury victim may successfully recover compensation against a culpable party if they can establish that the product caused the plaintiff’s injuries because it was unreasonably dangerous. The law does not require plaintiffs in these cases to prove negligence or carelessness.

Design defect claims allege that the inherent design of a product makes it unsafe for its intended purpose. Manufacturing defect claims arise when an injury victim concedes that the product’s design is safe, but some error in manufacturing occurred that renders the product unsafe. Finally, defective warning claims typically arise when a manufacturer fails to warn consumers and users about the inherent dangers of a device or product.

Court Finds Florida County Is Not Entitled to Summary Judgment in Recent Bike Accident Case

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

Florida biking accidents are a common cause of serious injuries in the state. In fact, the cyclist death rate in Florida is over 50% higher than in surrounding states. Miami leads the list of the Florida cities with the highest fatality rates. Bikers, motorists, and pedestrians must take special precautions while operating their vehicles or walking in roadways. Individuals who have been involved in a Florida bike accident should contact an experienced injury attorney to discuss their rights and potential remedies.

Late last month, an appellate court issued an opinion in a plaintiff’s appeal of summary judgment in favor of a county in a Florida negligence lawsuit. The biker filed a lawsuit after he suffered injuries when he lost control of his bike and fell into a drainage ditch. In his lawsuit, he alleged that the county had actual or constructive notice of the ditch. The country argued that it was not liable for the biker’s injuries because the plaintiff did not establish the element of causation.

According to the court’s opinion, the biker could not remember the exact moments right before falling into the ditch. However, the biker recalls that he was heading west when he approached the intersection and noticed a car stopped on the northbound lane. The plaintiff attempted to proceed south, but he did not know what the car was going to do, so he tried to go around the corner and stay on the shoulder. However, he was then struck by a vehicle and blacked out for several hours.

Florida Court Discusses Liability When a Vehicle Owner Lets Another Use Their Car

Published on: April 9, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Those who have experience dealing with a Florida insurance company, know the process can be a difficult one. Earlier this month, a state appellate court issued a written opinion in an insurance dispute case arising from a fatal Florida car accident. The case illustrates the difficulties that many accident victims face when attempting to recover for their injuries through either a Florida personal injury or a wrongful death lawsuit.

According to the court’s opinion, a driver caused a fatal accident while using his step-father’s vehicle. At the time of the accident, the driver had his step-father’s permission to use the vehicle. There were several insurance policies in effect at the time of the accident. Specifically, the driver had three policies with three different insurance companies, one of which was with Geico. In addition, the driver’s step-father had a policy with Allstate.

Allstate paid out $250,000 to the plaintiffs, which was the policy maximum. Pursuant to that agreement, the $250,000 was not an agreement to release the driver of all liability, but would offset any other recovery obtained by the plaintiffs.

Insurance Disputes in the Aftermath of a Florida Accident

Published on: April 6, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Many individuals in Florida have purchased some sort of insurance policy, whether it be car insurance, homeowner’s insurance, or another form of insurance. Insurance can protect an individual when accidents occur, but, unfortunately, sometimes insurance companies can be difficult to work with, or may refuse to cover a claim even when they are supposed to. Insurance disputes are common because insurance companies pour significant resources into legal teams to limit their liability. One form of insurance dispute occurs when the parties disagree on the amount of loss suffered by the insured. Depending on the policy, there are different ways to solve this type of dispute; one common way is through an appraisal.

For example, take a recent Florida appellate case. According to the court’s written opinion, the plaintiff had a homeowner’s insurance policy from State Farm, the defendant. The policy stated that when the two parties could not agree on the amount of loss suffered by the plaintiff, both parties would choose a qualified, disinterested appraiser who would then set the amount. In September of 2017, the plaintiff submitted a claim under the policy, and State Farm issued her a payment for her loss. However, the plaintiff disputed the amount of the loss, and notified State Farm that she was going to use a public adjuster as her appraiser. State Farm objected to this, because the plaintiff and the adjuster had an agreement that the adjuster would assist her and then receive a ten percent contingency fee. Because the adjuster received a portion of the final amount, State Farm argued that he could not be truly disinterested as the terms of the policy stated he must be.

The court ultimately agreed with State Farm. Under Florida law, when interpreting the terms of a contract, courts interpret plain and unambiguous language in accordance with its plain meaning. If a term has an ordinary meaning that it is usually assigned, then the court will give it that meaning in a contract, unless the parties specifically define it otherwise. The court found that the term disinterested could not apply to an adjuster who had a direct financial interest in the outcome; the higher the appraised value, the higher his commission. As such, the plaintiff was unable to retain the adjuster as her appraiser, and instead had to find an independent, disinterested appraiser who did not have a financial stake in the final outcome.