South Florida Personal Injury Lawyers Blog

U.S. Supreme Court Issues Opinion that May Impact the Rights of Many Florida Nursing Home Residents

Published on: January 22, 2019 | by Friedman Rodman Frank & Estrada, P.A.

In any Florida personal injury case brought against a nursing home, one issue that frequently arises is whether the resident has previously agreed to arbitrate their claim, rather than proceed through the court system. This is a critical issue because, in some cases, an arbitration clause signed by a resident may also preclude a resident’s family member from pursuing a claim against the nursing home.

While arbitration is supposed to be a neutral alternative to the court system, most experts agree that arbitration favors nursing homes for several reasons. For example, arbitration is generally a quicker process than a traditional lawsuit, saving nursing homes significant money on litigation costs. More concerning, however, is that arbitration proceedings are not bound by the procedural and evidentiary rules that apply in a Florida personal injury lawsuit. Finally, arbitration results are generally kept secret and cannot be appealed.

Given the benefits arbitration offers to nursing homes, most Florida nursing homes include arbitration agreements in their pre-admission contracts. Generally, a valid arbitration contract is enforceable. However, to prove that an arbitration agreement binds a plaintiff, a nursing home must establish that the plaintiff’s case falls within the agreement. Recently, the U.S. Supreme Court issued an opinion discussing whether a court can determine, as a preliminary matter, whether a claim must be resolved through arbitration.

Florida Court Determines Residential Community Is Not Liable for Car Accident Allegedly Caused by Dangerous Parking Policy

Published on: January 15, 2019 | 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 whether a private residential community could be held liable for the injuries sustained by motorists who were involved in a collision within the community. Ultimately, the court concluded that any alleged negligence of the community was not the proximate cause of the car accident, and thus the plaintiff’s case was dismissed.

The Facts of the Case

According to the court’s opinion, the plaintiffs were driving through a residential community when another motorist rear-ended them. Evidently, the plaintiffs’ vehicle had come to a stop to allow oncoming trucks to pass through a narrow area of the road where there were cars parked on both sides of the street. As the plaintiffs waited for the vehicles to pass, they were rear-ended.

The plaintiffs filed a Florida personal injury lawsuit against the motorist that struck their vehicle as well as the residential community. In support of their claim against the residential community, the plaintiffs cited a city code that prohibited parking on both sides of the street. Apparently, when the community was first created parking was only permitted in the driveways of residents’ homes; however, after discovering that this policy resulted in a severe parking shortage, the community allowed parking on both sides of the street. The plaintiffs claimed that by allowing residents to park on both sides of the road in violation of the city ordinance, the residential community was partially responsible for the accident.

Court Discusses Permissible Scope of Liability Release Waiver in Recent Florida Car Accident Case

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

Recently, a state appellate court issued a written opinion in a Florida car accident case requiring the court to determine if a liability release waiver signed by the plaintiff prevented her from pursuing a case against the defendant. Ultimately, the court concluded that the scope of the release waiver did not include the specific type of claim brought by the plaintiff.

The Facts of the Case

According to the court’s written opinion, the plaintiff was run over by a pick-up truck while she was attending a race at the Daytona International Speedway. Evidently, before the accident, employees of the speedway instructed the tow-truck driver to back the truck up into the area where the plaintiff was standing.

As a condition of allowing the plaintiff into the raceway, the racetrack asked that she sign a release of liability waiver. In essence, that waiver stated that the plaintiff acknowledged that there were dangers associated with standing on or near the raceway and that she agreed not to pursue any claims if she was injured due to “any negligent” actions of the defendant.

Can a Court Exclude Relevant Evidence from a Florida Personal Injury Trial?

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

In general, all relevant evidence is admissible in a Florida personal injury lawsuit. The Florida Rules of Evidence define relevant evidence as any evidence “tending to prove or disprove a material fact.” Thus, under the general rule, almost all of the evidence a party would hope to use at trial would be considered relevant.

Merely because evidence is relevant, however, does not mean that it will be admissible because the evidence may be precluded under another rule of evidence. Florida Rule of Evidence 90.403, which is based on Federal Rule of Evidence 403, is among the most important rules of evidence used by parties. Florida’s Rule 90.403 states that “relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”

It is important to note that not all prejudice is considered to be unfair. The type of prejudice that courts are concerned with is that which will allow or encourage jurors to base their decision on something other than the issues involved in the case. A recent state appellate opinion is a good illustration of this concept.

Florida Schools May Be Liable for Students’ Injuries

Published on: January 4, 2019 | by Friedman Rodman Frank & Estrada, P.A.

While no parent wants to think about the possibility of an accident occurring while their child is at school, on occasion these accidents do happen. When a child is injured in a Florida school accident, the parents of the child may be able to pursue a claim for compensation against the school based on the school’s duty to keep students safe.

In a recent case released by a state appellate court, a student’s lawsuit against a school district resulted in a defense verdict after the court instructed the jury that the school only owed the student a duty of ordinary care. The student had argued that, based on the “special relationship” that a school has with its students, the school owed her a heightened duty of care.

The court rejected the plaintiff’s interpretation, noting that schools have historically owed students a duty of reasonable care unless the harm was caused by some intentional conduct of a teacher or school administrator. Thus, in that case, the court affirmed the court’s decision to instruct the jury and the jury’s ultimate verdict.

Florida Court Explains the Limits on Circumstantial Evidence in Recent Car Accident Lawsuit

Published on: December 27, 2018 | by Friedman Rodman Frank & Estrada, P.A.

In a recent state appellate decision, a Florida court upheld a jury’s verdict in favor of a plaintiff who was seriously injured after being rear-ended by a van while stopped in traffic on the Buckman Bridge. The case required the court to determine whether the plaintiff’s case improperly relied upon the stacking of multiple inferences in light of the fact that the plaintiff’s evidence was circumstantial in nature. Ultimately, the court determined that the plaintiff’s claim was not reliant upon the improper stacking of inferences and affirmed the jury’s verdict in favor of the plaintiff.

Circumstantial Evidence

There are two types of evidence: direct and circumstantial. Direct evidence is evidence that tends to prove a conclusion without the need for any inference. For example, eyewitness testimony that a driver made a lane change without signaling would be considered direct evidence that the driver changed lanes and did not signal.

On the other hand, circumstantial evidence requires at least one inference to be made before reaching a conclusion. Circumstantial evidence is also known as “smoking gun” evidence. For example, if a man is shot and turns around only to see a woman with a smoking gun in her hand, the man’s observations are circumstantial evidence that the woman shot him. It is not direct evidence because he did not see the woman pull the trigger. However, it can be inferred that the fact the gun was smoking means that it was recently fired.

League Organizers May Be Liable in Florida Sports Injury Cases

Published on: December 24, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Anytime someone participates in a sporting activity, there is a risk that they could be injured. However, participants reasonably assume that the organization arranging the game has implemented rules to keep players safe and free from experiencing an unnecessary Florida sports injury.

In a recent opinion released by a federal appellate court, the court allowed a plaintiffs’ lawsuit to proceed against a youth water polo league based on the league’s failure to implement and enforce rules to keep players safe. The case illustrates the type of situation in which a Florida sports injury victim may be able to pursue a claim for compensation for the injuries they have sustained.

The Facts of the Case

According to the court’s opinion, the plaintiff was the mother of a student water polo player who was repeatedly hit in the head during the game and each time put back into play. The student ended up suffering a concussion and debilitating post-concussion syndrome.

Court Dismisses Snowboarder’s Case Against Resort Based on Assumption of the Risk: How Florida Courts May Differ

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

Recently, a state appellate court issued a written opinion in a personal injury case illustrating an important difference between Florida personal injury law and the laws of many other states. The case involved the defendant’s allegation that the plaintiff assumed the risk of injury and thus, should be precluded from obtaining compensation for her injuries.

Assumption of the Risk

In some states, if it is determined that a plaintiff voluntarily assumed the risks that resulted in her injuries the plaintiff is not allowed to recover for her injuries. The theory is that a person who is aware of the risks involved in an activity is able to weigh the risks before engaging in a particular activity. In general, Florida courts will not preclude a plaintiff from recovering for her injuries even if she was determined to have assumed the risk of injury. Instead, the court will allow the jury to factor the assumption-of-the-risk analysis into its comparative negligence finding.

There are, however, two exceptions to this rule, one of which is the participation in contact sports. If a plaintiff is injured while engaging in a contact sport, they may be found to have assumed the risks involved. The other exception involves a situation where a person signs a contract agreeing not to sue.

Court Dismisses Appeal Based on Plaintiff’s Failure to Object at Trial, Illustrating Importance of Properly Preserving Issues in Florida Personal Injury Cases

Published on: December 18, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Recently, a state appellate court issued a written opinion in a personal injury case illustrating the importance of taking all steps to properly preserve any issues a party believes a judge decided wrongly in a Florida personal injury case. In this case, the court ultimately dismissed the plaintiff’s appeal because she failed to make a timely objection.

The Facts of the Case

According to the court’s opinion, the plaintiff was rear-ended by the defendant and subsequently filed a personal injury lawsuit against the defendant. Before trial, the plaintiff filed several proposed jury instructions, including an instruction on the doctrine of negligence per se. The case proceeded to trial, and before sending the jury back to deliberate, the judge held a charging conference where the judge discussed how he would instruct the jury and hear arguments from counsel about proposed charges.

Evidently, the charging conference was not memorialized. At the conclusion of the conference, the judge determined the instructions would not include the plaintiff’s proposed instruction on negligence per se. The judge asked the parties if they had anything to add, to which the plaintiff’s attorney responded: “I have no issues with the charge, Your Honor.” The jury was instructed accordingly, and then returned a verdict in favor of the defendant.

Maintenance Company May Be Liable for Restaurant Employee’s Injuries Following Slip-and-Fall Accident

Published on: December 13, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Recently, a state appellate court issued a written opinion in a personal injury case presenting an interesting issue that frequently arises in Florida premises liability lawsuits. The case required the court to determine if the defendant maintenance company had a contractually imposed duty to the plaintiff to warn the plaintiff’s employer of any dangerous defects the company discovered while cleaning the parking lot.

The Facts of the Case

According to the court’s opinion, the plaintiff was an employee of a restaurant. One day, the plaintiff was asked to empty a grease trap into a dumpster located in the parking lot behind the restaurant. As the plaintiff approached the dumpster, he stepped in an uncovered water meter and spilled grease on himself. As a result, he suffered third-degree burns over his face and body.

The plaintiff initially filed a personal injury lawsuit against several parties; however, this appeal involves the maintenance company that the plaintiff’s employer had hired to maintain the restaurant’s parking lot. According to a contract between the plaintiff’s employer and the defendant maintenance company, the maintenance company was in charge of “sweeping” the parking lot. Also, the contract evidently contained a clause delegating the duty to warn the plaintiff’s employer of “any problems or defects that may be observed during each service visit” and that the company’s services were intended to “safeguard all persons and
property from injury.”