South Florida Personal Injury Lawyers Blog

Speculation Versus Proof in Florida Personal Injury Cases

Published on: October 30, 2019 | by Friedman Rodman Frank & Estrada, P.A.

In order to prove a Florida personal injury claim, a plaintiff has the burden to prove all of the elements of a negligence claim. Negligence cannot be presumed. This means that there must be at least some evidence to prove each element of negligence. In proving causation, Florida courts have held that the plaintiff must show that the accident was “more likely than not” caused by the defendant’s negligence. Evidence of negligence cannot be based on pure speculation. This is true of proving damages as well, which generally are not presumed either.

A recent state appellate decision illustrates this principle. In that case, the appeals court considered whether there was evidence of negligence when a driver claimed he did not see a pedestrian before he hit him on a highway. The defendant left home early in the morning to go to work about an hour away. He was on his way there, driving along the highway, at or under the speed limit. He was shifting to another lane, looking in his rearview mirror, when “his vehicle vibrated and jerked, and his windshield shattered,” and he realized he had hit something.

Glass flew into the defendant’s face, so he continued until he could pull over along the side of the road. He then walked back to the crash and saw a man in the road, who was later identified as the plaintiff’s husband. The husband died as a result of his injuries. The crash happened at about 5:30 in the morning, it was dark out, and the street was dimly lit. The defendant was driving with his headlights on.

Proving Negligent Entrustment in Florida DUI Cases

Published on: October 28, 2019 | by Friedman Rodman Frank & Estrada, P.A.

In the tragic event of a Florida DUI accident, people other than the driver may be held responsible for the crash in some circumstances. If another person or establishment allowed the operator to drive drunk, they may be found liable for the driver’s actions in a Florida personal injury claim.

A Florida negligent entrustment claim is based on negligently entrusting another person with a dangerous object, such as entrusting a person with a vehicle when the person is drunk. Under Florida law, to prove a negligent entrustment claim, a plaintiff must show that a person supplied directly or through a third person a chattel for the use of another person that the supplier knew or had reason to know would use it a way that involved an unreasonable risk of physical harm to himself and others. Florida courts have held that cars are dangerous instrumentalities and, not surprisingly, also that drunk driving is dangerous. However, Florida courts also generally hold that to prove a negligent entrustment claim in a drunk driving case, an owner will not generally be held liable if a person has a legal duty to return property to its owner. Some Florida courts have found that liability does not depend on ownership, but rather whether the harm was or should have been foreseeable.

Court Affirms $45 Million Award in DUI Negligent Entrustment Claim

Sovereign Immunity in Florida Car Accident Cases

Published on: October 24, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Sovereign immunity protects federal, state, and local governments from lawsuits, and can bar many Florida car accident cases from court. However, federal, state, and local governments can still be sued in many circumstances. This includes tort claims against the state of Florida or local governments for any act for which a private person would be held liable under the circumstances. The government cannot be held liable under Florida law unless there is a common law or statutory duty of care that existed that would hold individuals liable under similar circumstances. If a duty is owed to the plaintiff, a court must then determine whether sovereign immunity bars the claim.

In Florida, governmental immunity comes from the doctrine of separation of powers. The Florida Supreme Court has held that the separation of powers provision in the Florida Constitution requires that certain policy-making, planning, or judgmental governmental functions or “discretionary” functions normally do not benefit from sovereign immunity. Meanwhile, sovereign immunity generally is afforded to decisions made for “operational” functions. The court has said that planning level functions are normally those that require basic policy and planning decisions, while operational level functions are those that are required to implement policy or planning. In addition, courts have said that certain discretionary governmental functions are immune from tort liability because certain functions should not be subjected to scrutiny. Whether an act involved a decision of discretion and public policy rather than one of operation and implementation is not always clear. A recent decision from one state’s supreme court dealt with the issue of immunity in a car accident case involving a county garbage truck.

According to the court’s opinion, a man drove his employer’s vehicle into the back of a county garbage truck that was stopped on the side of the highway picking up garbage. There was dense fog and the man said that he could not see the road, and did not see the truck in time to stop. The man filed a complaint against the county for negligence.

The Duty to Preserve Evidence in Florida Products Liability Suits

Published on: October 21, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Understanding when a person or entity must preserve evidence and how to get them to do so is an important part of a Florida product liability case. For example, if a person claims that a product is defective, preserving the evidence so that it can be inspected is essential. A person or entity’s duty to preserve evidence can arise in different ways, including by contract, by status, or by a discovery request.

If a person or entity fails to preserve evidence, a plaintiff may be able to file a spoliation claim. There are first-party and third-party spoliation claims. First-party spoliation claims are claims in which a party allegedly destroyed, lost, or misplaced evidence, and the party is also the defendant in a lawsuit for causing the plaintiff’s injuries or damages. Third-party spoliation claims arise when a person or entity destroyed, lost, or misplaced evidence critical to a plaintiff’s lawsuit, but where that party was not a party to the underlying action causing the plaintiff’s injuries or damages.

Under Florida law, the elements of a spoliation claim are: 1) the existence of a potential civil claim; 2) a duty to preserve relevant evidence; 3) the destruction of that evidence; 4) the significant impairment on the plaintiff’s ability to win the lawsuit; 5) the destruction of evidence cause the inability to win the lawsuit; and 6) resulting damages. One state’s supreme court recently decided a case involving a third-party spoliation claim where the employer failed to preserve the alleged defective product in a product liability claim.

The Effect of Building Code Violations in Florida Premises Liability Claims

Published on: October 17, 2019 | by Friedman Rodman Frank & Estrada, P.A.

The existence of a building code violation may be used as evidence of negligence in some Florida premises liability cases. Evidence of a violation may constitute negligence per se, where a defendant’s conduct may be automatically considered negligent. However, the Florida Supreme Court has stated that not all violations of statutes will be regarded as negligence per se. Florida’s Supreme Court has divided violations of laws into three types. First, there is a violation of a strict liability statute that is intended to protect certain people who cannot protect themselves, which constitutes negligence per se. Second, there is a violation of a statute that establishes a duty to take measures to protect specific persons from certain injuries, which also constitutes negligence per se. Third, there is a violation of any other kind of statute, which only constitutes prima facie evidence of negligence.

Florida courts have stated that building code violations are not typically strict liability violations, and are not intended to protect specific persons, but rather the public in general. Therefore, they usually fall into the third category of only prima facie evidence of negligence. But Florida courts have decided that a jury can consider building code violations in determining whether a defendant met the standard of care in a negligence case.

A state appellate court recently issued an opinion in a negligence claim in which there was evidence of several building code violations. The court considered whether the defendant could be held liable, particularly in light of the violations. In that case, the plaintiff tripped on a step in the defendants’ garage. Under the Uniform Building Code, there were seven violations of its provisions concerning the steps. The violations included that the landing was more than seven and a half inches below floor level, the step rise was more than eight inches, and the variation between the largest and smallest rise was more than one-fourth inch.

Negligent Entrustment Claims in Florida Personal Injury Cases

Published on: October 14, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Negligent entrustment is a cause of action recognized in Florida personal injury cases. Proving negligent entrustment generally means establishing that another person or entity negligently allowed someone to use a dangerous object. In Florida, state courts have recognized section 390 of the Second Restatement of Torts, which states that if a someone supplies an object to another person and knows or has reason to believe it is likely that the object will be used in a way that involves unreasonable risk of physical harm to himself and others, that person is subject to liability for the resulting harm.

For example, a Florida court has found parents liable for negligent entrustment after they allowed their thirteen-year-old son to drive an ATV, after the ATV was involved an accident. That court decided that the parents knew or should have known that their son could not be entrusted with an ATV and that he was likely to violate the rules they had given him. In contrast, a Florida court found that a man could not be held liable for negligent entrustment after he put his drunk brother’s car keys in a place where he could easily have found them.

One state Supreme Court recently issued a decision in a negligent entrustment case. In that case, the plaintiff was knocked over and hospitalized at a grocery store by another customer driving a motorized cart. The plaintiff had about $11,500 in medical bills, and filed a negligent entrustment claim against the grocery store, claiming that the store should not have allowed the customer to use the motorized cart. After a jury found in favor of the plaintiff, awarding $121,000 in compensatory damages and $1,198,000 in punitive damages, the state’s supreme court reversed.

The Collateral Source Rule in Florida

Published on: October 10, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Florida personal injury cases can be complex, particularly when it comes to proving damages in cases where bills were already paid through another source. In a recent case before a state supreme court, the court considered whether to admit evidence of the original medical bill amount versus the amount actually paid for the services rendered.

According to the court’s opinion, the plaintiff was injured when she slipped and fell on ice at a hotel parking lot. She fractured her wrist and her leg and had to undergo surgery. The hospital billed her more than $135,000, but her medical expenses were paid by Medicare. Medicare paid the providers’ bills by paying around $24,000, at a rate of less than one-fifth of the amount the plaintiff was billed. The plaintiff later sued the hotel for negligence. The hotel argued that the plaintiff could not show her original medical bills as evidence of her damages, and argued that only the amount that Medicaid paid could be admitted as evidence.

The issues before the Alaska Supreme Court were whether the evidence should be limited to the amount paid or whether the amount billed was relevant in assessing the plaintiff’s damages, and whether the difference in amounts was a benefit from a collateral source. The court decided that the original amount billed was relevant as evidence of the value of the medical services. The court considered different approaches and decided that evidence of the amount billed was relevant.

Florida Workplace Slip and Fall Accidents

Published on: October 7, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Although injured workers must normally recover financial compensation from their employers through Florida workers’ compensation, an independent contractor may be able to recover for workplace injuries through a personal injury case. One federal appeals court recently dismissed a case that was brought in federal court involving an independent contractor who slipped and fell at a worksite. The court considered whether the hazard was one that the defendant was required to address or at least warn the plaintiff of.

According to the court’s opinion, the plaintiff suffered a severe knee injury when he slipped on fluid at an auto dealership that the defendant owned. The auto dealership hired a cleaning company to clean the dealership, including scrubbing all service floors six times a week with a degreasing chemical provided by the dealership. The plaintiff was an employee of the cleaning company and was going to take out the trash at the dealership before scrubbing the floors in the service area when he slipped and fell on liquid on the floor. It appeared to be oil or transmission fluid. The plaintiff claimed that the dealership failed to warn the plaintiff of the hazardous condition, and that it failed to maintain the premises in a reasonably safe condition.

The court found that the defendant could not be held liable because the plaintiff was hurt by a hazard that he was required to remedy. The court stated that a property owner generally has the same duty to the employees of independent contractors as it does to all other lawful visitors — to take reasonable and appropriate steps to prevent injury under the circumstances. However, in the case of independent contractors, property owners are not liable for risks that are “inherent in the job and of which the employee is fully aware.” That is, if a person is hired to remedy a hazard, that person would normally be aware of the potential of injury from that hazard. In contrast with the general public, that person would be aware of the risk they faced.

Establishing Liability Following Accidents on Florida Public Property

Published on: September 27, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Slip and fall accidents can occur virtually anywhere and often have a lifelong impact on the victim. Florida premises liability lawsuits can be challenging, but accidents that occur on public property are inherently more complex. Some common examples of defective or dangerous conditions on public property are slippery surfaces, uneven sidewalks, insufficient lighting, hazardous pedestrian areas, and unsafe stairways. These conditions can exist around public libraries, government buildings, courthouses, and city playgrounds. When an individual suffers injuries of this nature, they should retain a dedicated Florida injury attorney to understand their rights and remedies.

Generally, under Florida tort law, a person or entity can be liable for injuries that result because of their negligence. However, when the negligent party is a government agency or employee, the victim may not have any recourse due to government immunity laws. Government immunity prohibits individuals from suing a state or its employees for civil damages. However, there are some notable exceptions to this doctrine.

Florida’s sovereign immunity statute allows for lawsuits against government entities in specific situations. However, even in these situations, Florida victims must abide by the statute’s strict rules to prevent dismissal. Typically, Florida courts will only hear negligence cases filed within the four-year statute of limitations. However, the statute of limitations in government negligence lawsuits is three-years. Moreover, before a victim files a lawsuit, they must notify the Florida Department of Financial Services. A lawsuit is appropriate only after the state denies the claim or fails to reply. Further, generally, a plaintiff’s damages cannot exceed $200,000 per incident.

What Is an Intervening Cause in a Florida Premises Liability Lawsuit?

Published on: September 25, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Under Florida law, business and property owners must take steps to ensure that their land is free of dangers and safe for visitors. Typically, if a person sustains injuries because of a dangerous condition on another’s property, they can file a Florida premises liability lawsuit to recover for their injuries. In addition to establishing that the defendant violated a legal duty of care that was owed to the plaintiff, Florida injury victims must also prove that the defendant’s negligence was the actual or proximate cause of their injuries. Issues can arise if some independent intervening or superseding event breaks the causal link.

In many Florida personal injury lawsuits, causation is evident. For example, causation may be apparent when a person experiences shoulder pain after a car accident or breaks a leg tripping on a faulty staircase. However, an independent intervening cause is something that occurs after the defendant’s negligent act and contributes to or causes the plaintiff’s injuries. If the act is unforeseeable and causes an injury, the defendant may not be liable for the plaintiff’s damages.

Recently, a state appellate court issued an opinion in a premises liability case in which the defendant claimed, amongst other issues, that the plaintiff’s injuries were not foreseeable. In that case, a truck driver parked his car in a rented space and fell asleep while awaiting a shipment. The driver awoke when he heard someone trying to break into the truck with a pry bar. When the truck driver stuck his head out of the window to see the culprit, the man drove the truck away with the driver hanging out of the cab. The truck driver’s head hit a trailer, and he was thrown out of the truck and run over numerous times.