South Florida Personal Injury Lawyers Blog

Claims Against Government Employees and Agencies Must Comply with the Requirements of the FTCA

Published on: August 31, 2018 | by Friedman Rodman Frank & Estrada, P.A.

During the formation of our country, the founding fathers did not provide a mechanism for citizens to hold the federal, state, and local governments liable for injuries caused by government actors, unless the government being named as a defendant agreed to be named in the lawsuit. In fact, governments were then, and still are to some extent, presumed to be immune from tort liability. However, since then, state and federal lawmakers have passed a series of laws known as tort claims acts, which statutorily waive government immunity in certain circumstances.

Generally, a tort claims act requires that certain procedures be followed in order for the government to waive its immunity. The State of Florida is no different. Under the Florida Tort Claims Act (FTCA), if a Florida accident victim fails to comply with the requirements of the FTCA, the accident victim’s case will be dismissed. Thus, it is very important that an accident victim ensure that they follow all the requirements of the FTCA.

A recent case illustrates the strict manner in which courts apply the requirements of a tort claims act.

Court Discusses Venue Selection in Recent UIM Case

Published on: August 23, 2018 | by Friedman Rodman Frank & Estrada, P.A.

In Florida car accident cases, one of the first issues the parties may argue over is where the case will be heard. Of course, most plaintiffs would prefer to file the case in a venue that is convenient for them. However, as a general rule venue is appropriate where the defendant resides. That being said, a plaintiff can choose where to initially file a case, and may have some say in where a case is heard.

A recent case discusses a somewhat complicated venue issue that arose after an uninsured motorist collision. The case involved a named and an unnamed defendant, and required the court to determine whether the named defendant should be able to transfer the case to his home county. Finding that the case could be heard in either of the defendant’s home venues, the court determined that the named defendant was not entitled to transfer the case.

The Facts of the Case

The plaintiffs were involved in a three-car accident after an unnamed driver swerved in front of their vehicle, requiring them to quickly apply the brakes. The named defendant, who was traveling directly behind the plaintiffs, slammed into the back of their car. The plaintiffs claimed the named defendant was following too closely.

Court Holds Employer’s Insurance Company Was Responsible for Employee’s Drunk-Driving Accident

Published on: August 21, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Recently, a state appellate court issued a written opinion in a personal injury case discussing whether a car accident that was caused by an intoxicated employee was covered under the employer’s insurance policy. Specifically, the case required the court to determine if the employee was considered a “permissive user” under the company’s insurance policy. Ultimately, the court concluded that the employee was a permissive user, and therefore the accident was covered under the employer’s insurance policy.

The case presents a valuable lesson for Florida car accident victims in that it illustrates the importance of discovering all available potential avenues for recovery in a personal injury lawsuit. By naming multiple responsible parties, a plaintiff increases their chance of recovery in the event that one named defendant is insolvent or found not to be liable for the plaintiff’s injuries.

The Facts of the Case

The plaintiff was injured in a car accident when the defendant rear-ended him. At the time of the accident, the defendant was traveling for work and operating a company vehicle. It was later determined that the defendant was under the influence of alcohol at the time of the accident.

Update on Florida Roller Coaster Accident

Published on: August 20, 2018 | by Friedman Rodman Frank & Estrada, P.A.

In June of this year, six passengers were injured in a Florida roller coaster accident when one of the coaster’s car became derailed from the tracks. Two of the passengers in the front car were thrown from the ride, falling 34 feet to the ground. The remaining passengers waited in cars that were dangling from the tracks for emergency responders to extricate them from the ride. In all, ten people had to be removed by emergency workers, and six were hospitalized with varying injuries.

At the time of the accident, there was much speculation as to what could have caused the ride to malfunction in such a dangerous way. According to a recent news report, an investigation into the accident has uncovered some additional information as to what may have caused the accident.

Evidently, there were several problems that may have contributed to the accident. First, investigators noted that the ride looked as though cars had been derailed in the past, but had not been reported. Generally, Florida roller coasters are inspected twice a year by the Florida Department of Agriculture and Consumer Services (FDACS). However, ride operators are required to conduct daily inspections prior to opening the ride to the public. This includes inspecting the structural integrity of the ride, as well as the condition of the track and cars. These inspections are required to be kept on hand in the event of an incident.

Florida Court Attempts to Limit Class of Cases Subject to Burdensome Medical Malpractice Requirements

Published on: August 15, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Under Florida Statutes section 766.106, Florida medical malpractice plaintiffs must comply with certain additional procedural requirements. For example, a Florida medical malpractice plaintiff must provide pre-suit notice to the defendants, including a list of all of their medical providers for the two-year period prior to the incident as well as all providers seen subsequent to the incident. In addition, medical malpractice plaintiffs are subject to a shorter statute of limitations and must also present an expert affidavit in support of their claim.These additional requirements, while burdensome, may not seem like an insurmountable hurdle. However, in reality, defendants often attempt to raise a plaintiff’s failure to comply with the additional requirements as a defense after the lawsuit has been filed. Thus, a defendant may be successful in barring a plaintiff’s ability to recover damages by establishing that the plaintiff failed to comply, and by that point, it may be too late because the statute of limitations has expired.

Thus, the determination of whether a case is one of traditional negligence or medical malpractice is an important one. In a recent case, a state appellate court issued an opinion discussing the distinction between the two types of cases and which types of cases are likely to be considered ones involving claims of medical malpractice.

Court Dismisses Slip-and-Fall Case, Finding that a Photograph Alone Was Insufficient to Establish the Defendant’s Knowledge of the Hazard

Published on: August 14, 2018 | by Friedman Rodman Frank & Estrada, P.A.

In Florida slip-and-fall lawsuits, the plaintiff must present some evidence that the defendant landowner knew of the hazard and failed to take action. Courts, however, do not necessarily require plaintiffs to present evidence of a defendant’s actual knowledge. In some cases, a plaintiff may be able to meet their burden by establishing that the defendant had constructive knowledge of the hazard.Under Florida Statute section 768.0755, constructive knowledge can be established by circumstantial evidence in one of two ways:

The condition was present for such a length of time that the business should have known of its existence; or
The condition occurred frequently.

The type of evidence required to prove constructive knowledge varies depending on the surrounding circumstances. And as a recent case illustrates, establishing a defendant’s constructive knowledge may not be as simple as it initially seems.

Jury Holds Railroad Company Liable for Fatal Train Accident, Court Upholds $10.4 Million Verdict

Published on: August 8, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Although less common than years ago, Florida train accidents still injure a significant number of people each year. In fact, according to the most recent government statistics, there have already been roughly 350 fatalities due to train accidents so far this year.Railroad companies have a duty to ensure that they operate safely. This means that they must ensure that the train and tracks are in good condition, that crossings are well-marked and free of visual obstructions, and that train operators do what they can to avoid accidents. In a recent wrongful death case, a court affirmed a jury verdict in the amount of $10.7 million, based on a railroad company’s failure to take the necessary precautions to avoid an accident.

The Facts of the Case

The plaintiff’s husband and a friend were traveling across a set of railroad tracks when, unbeknownst to them, a train was immediately approaching. The train collided with the vehicle, which was being driven by the plaintiff’s husband, causing it to flip upside down. Both the plaintiff’s husband and the passenger were ejected. The plaintiff’s husband died as a result of the injuries he sustained in the accident. The passenger survived, although he suffered serious injuries.

Court Finds that Restaurant Had a Duty to Control Black Widow Spider Population

Published on: August 6, 2018 | by Friedman Rodman Frank & Estrada, P.A.

In a recent appellate opinion, a court determined that a restaurant may have a duty to take some kind of action to control the population of venomous spiders on the premises. The case presents an interesting issue for potential Florida premises liability plaintiffs because it illustrates the extent of the duty that a business owes its customers.The Facts of the Case

The plaintiff and a friend decided to have lunch on the patio of the defendant restaurant. Prior to eating, the plaintiff removed her over shirt and set it down beside her. After the two had finished lunch, the plaintiff put the shirt back on. As soon as the plaintiff’s shirt was back on, she felt a sharp pain in her shoulder. She told her friend that she thought something had bitten her.

Not thinking that anything was seriously wrong, the plaintiff went home. However, the next day, she woke up completely numb and unable to move her arms or legs. She managed to call for help using her nose, and she was ultimately admitted to the hospital, where she stayed for six days.

Court Rejects Plaintiff’s Claim That She Was Distracted at Time of Accident

Published on: July 26, 2018 | by Friedman Rodman Frank & Estrada, P.A.

The ultimate question in Florida premises liability lawsuits is whether the defendant landowner was negligent in the maintenance of their property. In order to determine if a landowner is legally negligent, courts consider a variety of factors, including the relationship between the parties, the level of duty the defendant owed to the plaintiff, the type of hazard that caused the plaintiff’s injuries, whether the defendant knew or should have known about the hazard, and whether the hazard was obvious to the plaintiff.

Each of these factors can come into play when a court is determining if the defendant landowner was negligent. In Florida, even if a plaintiff shares in the fault, the case will proceed to trial so long as the evidence suggests that defendant was also negligent.

That being said, plaintiffs have the burden to establish that their case is sufficient as a matter of law before the case is sent to a jury for resolution. In order to meet this burden, a plaintiff must present evidence of each element of their claim. If a plaintiff cannot prevail at a trial based on a lack of evidence regarding a required element, then the court will dismiss the plaintiff’s case. A recent case illustrates one plaintiff’s unsuccessful attempt to establish her case against a fast-food restaurant.

Florida Court Invalidates Single Clause in Arbitration Agreement but Still Requires the Plaintiff to Arbitrate Her Claims

Published on: July 23, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Recently, a state appellate court issued an opinion in a Florida nursing home negligence lawsuit requiring the court to determine if the plaintiff’s case was properly brought in court or if she was required to submit the case to arbitration. Ultimately, the court concluded that while there was one clause in the agreement that was unenforceable, the agreement as a whole should be upheld. Thus, the plaintiff was still required to submit her case through arbitration.

The Facts

The plaintiff was the estate of a woman who died while in the care of the defendant nursing home. Prior to the woman’s admission into the nursing home, she executed an arbitration agreement. Essentially, the agreement waived her right to pursue a claim against the nursing home in a court of law, favoring resolution of any claims through the arbitration process.

After the woman died, the estate filed a personal injury lawsuit against the nursing home, claiming that the arbitration agreement the woman had signed was unenforceable because while the agreement stipulated that Florida substantive law would be applied at the arbitration proceedings, it also stipulated that Alabama rules of evidence and procedural rules would apply.