South Florida Personal Injury Lawyers Blog

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.

Court Discusses “Coming-and-Going” Rule as It Pertains to Employer Liability

Published on: July 19, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Recently, an appellate court issued an opinion in a car accident case that raised an interesting issue that frequently comes up in Florida car accident cases. The case involved an accident between an employee who was on his way home from work and the plaintiff. The plaintiff attempted to hold the employee’s employer liable for his injuries under the theory of vicarious liability. However, the court rejected the plaintiff’s claim based on the “coming-and-going” rule.

The Facts of the Case

The plaintiff was walking along the sidewalk when he was struck by a vehicle that had just been hit by another car that was being driven by a county public defender (the “employee”). The employee was on his way home from work at the time of the accident.

The employee worked for the county, which did not officially require that the employee have his own car. However, the employee’s job required that he go to numerous courthouses, visit clients in prison, and go to crime scenes in various cities. Thus, essentially, the job would not be possible without a car.

Nursing Home Arbitration Contracts Still Common, Despite Being Disfavored

Published on: July 16, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Nursing homes have come under fire over the past few years for the manner in which they get residents and their families to give up their right to pursue a case against the nursing home in court. Often, these arbitration clauses are, at best, written in small text hidden among countless other pages of documents or, at worst, presented to residents in a take-it-or-leave it fashion, such that if they refuse to sign their application will be rejected.An arbitration clause is not so much about what a nursing home resident is getting, but about what they give up. Under the U.S. Constitution, everyone has the right to access the court system to resolve grievances; however, that right can be waived through an explicit agreement to arbitrate all claims instead of using the court system. One of the problems with arbitration, however, is that it often puts a nursing home at an unfair advantage.

Thus, government agencies and watch-dog groups have been advocating for nursing homes to do away with arbitration clauses in their pre-admission paperwork. These are often presented to a potential resident or their family in a time of desperation, when the consequences of waiving their rights may not be fully realized. Notwithstanding that fact, nursing homes continue to include arbitration clauses in their pre-admission paperwork, although few have the gall to deny a resident admission if they refuse to sign it. Instead, nursing homes are relying on a resident not fully understanding what it is they are signing or simply overlooking the clause altogether.

Driver Fatigue Determined to Be the Cause of Near-Fatal Florida Toll-Booth Accident

Published on: July 12, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Earlier last month, video of a serious Florida car accident occurring at a toll booth spread across the internet, with most viewers surprised by the fact that no one involved in the accident was killed. According to a local news report, the accident occurred on the Florida Turnpike, near St. Cloud in Osceola County, in one of the road’s several pay booths.The video shows a white sport-utility vehicle traveling toward the toll booth at what seems like full-speed. As the SUV approaches the booth, it does not slow down, takes out several of the warning cones placed in front of the booth, and collides head-on with the cement barrier that divides two of the toll booths.

After the initial collision, the car is thrown upward into the air as it catches fire. However, immediately after impact, one of the passengers in the car was catapulted through the front windshield of the vehicle onto the pavement some 60 feet away from where the accident occurred. The video, which may be too graphic for some viewers, shows the passenger’s head narrowly miss several obstacles before coming to a rest against one of the toll booths.

Plaintiff’s Slip-and-Fall Accident Permitted to Proceed To Trial Over Defense’s Summary Judgment Motion

Published on: July 9, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Recently, a state appellate court issued a written opinion in a Florida premises liability case requiring the court to determine if the plaintiff presented sufficient evidence to survive a defense motion for summary judgment. Although the trial court granted the defendant’s motion, finding that the plaintiff presented insufficient evidence that the defendant was aware of the hazard that caused his fall, the appellate court reversed the lower court’s decision based on the plaintiff’s own testimony.

Summary Judgment

Summary judgment is a stage in many Florida personal injury cases in which one or both parties ask the judge to rule in their favor prior to trial. A judge will grant a party’s motion for summary judgment only when there are no contested issues of fact and, after considering the uncontested evidence, the moving party is entitled to judgment as a matter of law. Essentially this means that after taking into account the uncontested evidence, the non-moving party would not be able to prevail at trial.

The Facts of the Case

The plaintiff was seriously injured when a heavy object fell and struck him in the back of the leg while he was shopping in the defendant hardware store. After the accident, the plaintiff was told by an employee that the object that hit him was a trailer hitch that had fallen from high up on the shelf. The plaintiff testified that after the accident, he saw employees stacking trailer hitches high up on the shelves.

Court Limits Employer’s Duty in Recent Case Stemming from Pedestrian-Railroad Fatality

Published on: July 5, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Recently, a state appellate court issued a written opinion in a Florida pedestrian accident case involving the duty a defendant employer owes to a plaintiff employee. The case presented the court with the opportunity to discuss the outer limits of an employer’s duty to protect an employee. Ultimately, the court concluded that the defendant employer owed no duty to the employee, and thus, could not be held liable for her death.

The Facts of the Case

The plaintiff worked for the defendant employer, a financial services firm. The defendant maintained a bar on-site to encourage employees to socialize and stay at work longer than they may otherwise have chosen to. One day, the plaintiff visited the defendant’s bar after work. After a few drinks, the plaintiff began to get agitated at other employees, and she was eventually told to leave and subsequently escorted out. Her access into the building was revoked.

The plaintiff then began to walk toward her home, which was ten miles away. She was walking along a set of railroad tracks when she was struck by an oncoming train. She was killed instantly.

Court Discusses Plaintiff’s UIM Rejection in Recent Car Accident Case

Published on: July 2, 2018 | by Friedman Rodman Frank & Estrada, P.A.

A state appellate court recently issued an opinion in an interesting car accident case. The case presented the court with the opportunity to discuss whether a plaintiff’s signed rejection of uninsured motorist (UIM) protection was valid under state law. Ultimately, the court concluded that the plaintiff’s rejection of UIM coverage was valid and the defendant insurance company was not required to cover the plaintiff’s claim.The case is important for Florida car accident victims because it illustrates the benefits of UIM coverage and the potential problems accident victims can encounter if they do not obtain sufficient UIM coverage.

The Facts of the Case

The opinion was issued as a result of two consolidated cases that presented similar issues. In both cases, the plaintiffs had obtained auto insurance coverage through the defendant insurance company. As is required by state law, the insurance company included UIM coverage as a default coverage. However, the company allowed for customers to opt out of coverage by signing a UIM rejection form.

Court Holds that Alternate Designee in Power-of-Attorney Document Had Authority to Sign Arbitration Agreement

Published on: June 25, 2018 | by Friedman Rodman Frank & Estrada, P.A.

In most Florida nursing home abuse and neglect cases, the threshold issue is whether the case can be pursued through the court system, or if the plaintiff must pursue their claim for compensation through the arbitration process. The reason this issue so often arises is because nursing homes routinely include arbitration agreements in their pre-admission paperwork.While arbitration is generally understood to be a more favorable forum for a nursing home, many families end up signing these agreements due to the inherent emotional pressures that are present at the time a decision must be made. While courts do have the ability to declare arbitration agreements void, it is the plaintiff’s burden to establish why that is the case.

In a recent opinion, the plaintiff’s case was dismissed based on an arbitration agreement that she had signed prior to admitting her mother into the defendant nursing home. In so holding, the court rejected the plaintiff’s argument that, at the time she signed the document, she did not have the legal authority to do so.

Court Finds City Contractors Not Liable for Obstructive Shrubbery

Published on: June 22, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, a state appellate court issued a written opinion in a Florida car accident case discussing the Slavin doctrine, and how it can protect a contractor from liability that was allegedly caused by their work. The case arose in the context of a motorcycle accident that the plaintiff argues was the result of shrubbery that obstructed the view of motorists as they approached the intersection.

The Facts of the Case

The plaintiff was a surviving family member of a motorcyclist who was killed when he entered an intersection and was hit by another vehicle. The plaintiff believed that the accident was the result of shrubbery that obscured the vision of motorists as they approached the intersection. The plaintiff filed a personal injury lawsuit against several entities, including the company that planned the landscaping project, the general contractor, and the landscaping company (‘the contractors”).