South Florida Personal Injury Lawyers Blog

Florida Appeals Court Compels Arbitration Between Nursing Home and Plaintiff

Published on: September 19, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Recently, an appeals court issued an opinion in a Florida nursing home abuse lawsuit. According to the court’s opinion, the plaintiff filed a lawsuit against a nursing home, alleging that the home neglected his father, leading to the father’s death. The nursing home filed a motion to dismiss the claim and compel arbitration based on an agreement the parties signed before the plaintiff’s father admittance.

Arbitration agreements are designed to provide parties with an alternative to filing a lawsuit when a dispute arises. Although arbitration is designed to cut legal costs, it also is a means to force plaintiffs to accept terms that may not be in their favor. There are generally two types of arbitration, binding and non-binding. If a party signs a contract for binding arbitration, the decision is binding and cannot be appealed. However, non-binding arbitration allows the parties to either accept the decision or file a lawsuit.

Generally, both parties must agree to arbitrate before undertaking any contractual relationship. However, in many situations, a nursing home adds the provision to their contract, and the other party may not adequately understand the agreement or have the opportunity to dispute it. For example, if a family needs to get their loved one member into a Florida nursing home, they may sign the contract and agreement to arbitrate because they want to ensure that their loved one is admitted as soon as possible.

Judgment in Recent Nursing Home Case Relates to Florida Elder Abuse Claims

Published on: September 16, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Florida nursing homes and medical providers can be held accountable for the negligent or criminal conduct of their employees amounting to elder abuse. And, if successful, substantial compensation may be awarded to abused patients and their families. An alarming number of nursing home residents are victims of sexual, physical, and psychological abuse, as well as neglect. In a recently released opinion by a state appellate court, a substantial jury verdict in favor of the estate of a sexually abused woman was addressed on appeal, and ultimately overturned.

The plaintiff in the recently decided case was the estate of an elderly woman who was molested and raped by an employee of the defendant nursing home while under the home’s care. The plaintiff sued both the employee who committed the criminal acts, as well as the nursing home where the abuse occurred. At trial, the jury found that the nursing home was vicariously liable for the conduct of the employee, and the plaintiff was awarded a significant sum in damages, and the nursing home appealed.

The primary issue on appeal was whether the trial court erred in finding, as a matter of law, that the employee was acting within the scope of his employment when he committed the crimes, and also instructing the jury as such. Because an employer can only be held accountable for negligent or criminal acts committed by an employee while in the scope of their employment, the appellate court found that the lower court’s decision likely played a significant role to convince the jury that the nursing home was liable for damages. The higher court also ruled that the issue of whether the employee was acting within the scope of his employment should not have been decided as a matter of law before trial, and instead should have been submitted to the jury as a question of fact. Because the issue wasn’t presented to the jury, the verdict was overturned and the case remanded for a new trial.

Recovering after a Florida DUI Truck Accident

Published on: September 11, 2019 | by Friedman Rodman Frank & Estrada, P.A.

It is hard to understand, given the wealth of knowledge illustrating the dangers of drunk driving, why anyone would drive after having too much to drink. However, it happens all the time. In Florida, there were over 5,000 Florida drunk driving accidents in 2017 alone. Of those accidents, 350 resulted in at least one death.

Florida truck accidents involving an intoxicated driver are more common than many motorists believe. One reason for this is that truck drivers spend long hours on the road, and often take various substances to stay awake. Aside from alcohol, the three most common drugs used by truck drivers are marijuana, amphetamines, and cocaine. Each of these drugs tends to cause a driver to be more alert initially; however, as the drug wears off, truck drivers may feel tired or lethargic.

Taking drugs while driving a large truck increases several risks. First, the mind-altering effect the drug has on the driver can decrease reaction time and reduce cognitive functioning overall. And second, once the drug wears off, the risk of a Florida drowsy driving accident increases.

Florida Premises Liability Cases Arising Out of Slip and Fall Accidents at Restaurants

Published on: September 9, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Florida premises liability laws require all landowners take certain precautions to ensure that their property is safe. The extent of a landowner’s duty significantly depends on the relationship between the landowner and their guest. Guests who are on a landowner’s property for business reasons are referred to as invitees, and enjoy the highest duty of care. Restaurant patrons fit within this category.

Among the issues that come up in South Florida slip and fall cases is that of the plaintiff’s knowledge of the hazard that caused their fall. Defendants often argue that plaintiffs should not be allowed to hold them responsible for risks that the plaintiff should have been able to avoid. Thus, a plaintiff may have a difficult time recovering for their injuries if the defendant can show that the hazard was “open and obvious.” A recent case illustrates this concept.

According to the court’s opinion, the plaintiff visited the defendant restaurant for lunch with a friend. Upon arriving, the plaintiff ascended a set of concrete stairs which contained several small landings. There were handrails along each of the stairs, but not along each of the landings. The plaintiff made it up the stairs without issue. However, after lunch, the plaintiff tripped and fell on the last step. Apparently, the plaintiff thought he was at the bottom of the stairs when, in reality, there was one more step. The plaintiff tripped and was seriously injured.

Florida Court Finds Plaintiff’s Claim Against Homebuilder Was Time-Barred

Published on: September 5, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Last month, a state appellate court issued a written opinion in a Florida personal injury case involving the state’s statute of repose for claims related to the “design, planning, or construction of an improvement to real property.” Ultimately, the court concluded that the plaintiff’s claim fit within the statute’s reach, and was no longer viable under the applicable statute of repose.

Statutes of repose are similar to statutes of limitations in that they limit the time a plaintiff has to file a claim. However, unlike a statute of limitations, a statute of repose is not subject to tolling or extensions. Thus, a statute of repose can bar a plaintiff’s claim even if the plaintiff does not know of the alleged defect until after the statute has expired.

According to the court’s opinion, the plaintiff purchased a home from the defendant home builder on May 7, 2004. On June 6, 2012, the plaintiff was climbing into the attic to repair a leak when the attic stairs collapsed. The plaintiff brought a personal injury claim against the home builder, claiming that it was negligent for “failing to ensure that the attic ladder was installed in a secure manner” and “failing to verify that the ladder was secure before selling the home.”

When Can a Florida Landowner Be Held Liable for Injuries Occurring on Their Property?

Published on: August 29, 2019 | by Friedman Rodman Frank & Estrada, P.A.

As a general rule, Florida landowners must take steps to make sure that their property is safe for the visitors whom they allow onto their land. For the most part, this includes publicly- and privately-owned land. However, under the Florida recreational use statute, there is an exception that allows for landowners to evade responsibility in certain situations.

Under Florida’s recreational use statute, anyone who allows the public to use their property for recreational purposes, without charging a fee, cannot be held liable for injuries occurring on their property. The statute applies to a variety of activities, including hunting, fishing, camping, wildlife viewing, swimming, boating, picnicking, and water skiing. A recent state appellate decision raises a commonly encountered issue in cases that implicate the recreational use statute.

According to the court’s opinion, the plaintiff and her boyfriend were camping at a state park. Evidently, once the two parked, there were two ways to access the campground from the parking lot; a stone staircase and an ADA-approved wheelchair ramp. The plaintiff and her boyfriend used the stairs on the way down without incident.

Parties in Florida Personal Injury Cases Must Disclose the Scope of Expert Witnesses’ Testimony

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

In some Florida personal injury cases, either or both parties will rely on the testimony of an expert witness to help prove their case. Typically, expert witnesses are not needed. However, if the issues involved in a case are complex and beyond the common understanding of the jurors, then an expert witness may help the jury resolve these issues.

Florida law requires that parties disclose the names of the experts they will be calling. Additionally, the law requires that a party provides an overview of the witness’ expected testimony. A recent opinion released by a state appellate court discusses the ramifications if proper notice of expert witness testimony is not given.

According to the written opinion, the plaintiff was incarcerated at a county jail when he was injured in a bus accident. The plaintiff brought a personal injury claim against the county. The county initially did not plan on calling an expert witness. However, during pre-trial discovery, it was revealed that the plaintiff was involved in two other vehicle accidents and that he planned on calling an expert witness at trial. One of the accidents occurred after this bus accident but before the case went to trial, complicating the question of what caused the plaintiff’s damages. In light of the new information, the county then named an expert witness, who would testify solely to impeach the plaintiff’s medical expert.

The Importance of Determining the Availability of Insurance Coverage after a Devastating Florida Personal Injury Accident

Published on: August 23, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, a federal appellate court issued a written opinion in a case discussing a crucial issue that arises in many Florida personal injury cases. The case required the court to determine if the defendant insurance company could be named as a responsible party.

The facts of the case are not complicated, but the relationships between the parties are a little confusing. According to the court’s opinion, a girl was visiting a resort while at a Bible camp. The church leased several conference rooms from the resort. The resort had various other amenities, including a zip-line. The lease between the church and the resort did not mention the zip-line.

The young girl and a few friends decided to go zip-lining during some downtime. The girls had to sign release waivers and pay an additional fee. Unfortunately, while the girl was on the course, a resort employee forgot to clip the girl’s carabiner to the line, and she fell 50 feet. The girl and her family filed a personal injury case against the resort.

Florida Court Finds Property Management Company May Be Liable for Apartment Complex Slip and Fall Accident

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

In June 2019, a state appellate court issued a written opinion in a Florida premises liability case requiring the court determine if a property management company overseeing an apartment complex could be liable for a resident’s injuries. Ultimately, the court concluded that the agreement between the property management company and the owner of the complex may have placed a duty on the property management company to fix the hazard that caused the plaintiff’s injuries. Thus, the appellate court reversed the lower court’s decision to grant the management company’s motion for summary judgment.

According to the court’s opinion, the plaintiff had lived at the apartment complex for about 11 months. Typically, the plaintiff would drive to go get her mail from a kiosk located at the front of the complex. However, one day, she decided to walk. On her way, the plaintiff tripped and fell as she was walking down a sloped portion of the sidewalk that was designated for wheelchairs.

The plaintiff filed a personal injury case against several parties, including the property management company. Evidently, the property management company had entered into a contract with the owner of the complex whereby the company would advertise vacancies, collect rent, and maintain the property. Specifically, the agreement allowed the company to use its discretion when conducting repairs costing less than $2,000, but required owner approval for the more expensive maintenance unless “emergency action is necessary.” It was established that repairing the sidewalk would have cost more than $2,000. Both the property management company as the complex owner knew that the sloped walkway was not in compliance with city code.

Florida Court Reverses Verdict in Medical Malpractice Case Involving a Serious Birth Injury

Published on: August 16, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Florida medical malpractice claims require extensive work and resources. In a recent medical malpractice case before a federal appeals court, the court had to consider whether a $7 million dollar verdict could stand against a doctor after a baby suffered permanent brain damage after her birth.

Evidently, the baby was born with severe respiratory issues and developed permanent brain damage. The baby was born at a hospital that did not have a neonatal intensive care unit (NICU), and did not have all of the equipment found in a NICU. Babies that needed specialized care were often transported to a nearby hospital with a NICU. This baby showed signs of respiratory distress immediately after she was born. She was provided with supplemental oxygen, and the doctor left for a few hours. The baby was not improving, and the doctor first decided to transfer the baby to the nearby NICU. However, a new neonatologist specialist at the hospital said that a transfer was not necessary, and agreed to take the baby on as a patient.

The baby’s condition continued to deteriorate, and she was eventually transferred the next day to the NICU, and stayed for almost a month. The baby’s mother filed a lawsuit alleging that the first doctor and others were at fault for the baby’s permanent brain damage. The mother claimed that the doctor should have transferred the baby from the hospital where she was born to a hospital with a neonatal intensive care unit that could have provided the baby with the care she needed. The other defendants settled the suit with the mother, but the case against the doctor went to trial, and the court awarded the mother over $7 million in damages.