South Florida Personal Injury Lawyers Blog

Court Applies Government Immunity in Bicycle Accident, Dismissing Plaintiff’s Claim

Published on: April 20, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, the United States Court of Appeals for the Fifth Circuit released a written opinion in a premises liability lawsuit against the federal government, alleging that the United States Forest Service, through its employees, was negligent in the maintenance of bike trails in a forest. The court ultimately determined that the alleged acts of negligence were covered under governmental immunity, and it rejected the plaintiff’s claims.

The Facts of the Case

The plaintiff and a friend were mountain biking in the De Soto National Forest. The bikers began their trip at the Couch Loop Trail. While the trail was closed, the plaintiff did not stop at the trail-head bulletin board, where the notice of closure was posted.

The plaintiff and her friend rode the Couch Loop Trail until they decided to take an “alternate route” to the left. This alternate route led the bikers to an area with several obstacles that had been built by a local bike association. As the plaintiff attempted to negotiate one of the obstacles, she fell off her bike and was seriously injured. She then filed a premises liability lawsuit against the U.S. government, claiming that the Forest Service was negligent in its maintenance of the bike trails. The plaintiff also alleged that the Forest Service was negligent in failing to warn her about the potential dangerous conditions present on the trails.

Florida Premises Liability Claims Against Landlords

Published on: April 17, 2017 | by Friedman Rodman Frank & Estrada, P.A.

In most cases, landowners owe a duty of care to those whom they invite onto their land. As a general rule, the level of care owed to a visitor depends on the relationship between the parties. For example, a customer shopping at a business is owed a higher duty of care than a trespasser who enters the owner’s land without permission.The landlord-tenant relationship presents an interesting intersection of premises liability law and contract law. Certainly, the landlord retains legal ownership of the property and is responsible for transferring the property to the tenant in a reasonably safe condition; however, pursuant to the lease between the parties, the tenant is in exclusive possession of the property. Thus, courts have had to devise a way to determine when liability is appropriate in situations in which an injury occurs at a property owned by the landlord.

In Florida, a landlord can be held liable for injuries occurring on the property in a limited number of situations. The first is if the property was not transferred to the tenant in a safe condition. This includes making sure that the building is up to all building, housing, and health codes. The second potential basis for landlord liability is when the landlord fails to repair a known defect. In order for a tenant to succeed under this theory of liability, the tenant must have provided the landlord notice that the dangerous condition needed repair. Finally, a landlord may be liable to non-tenants in certain circumstances if a tenant’s dog attacks a visitor.

State Court of Appeals Invalidates Nursing Home Arbitration Contract

Published on: April 13, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Late last year, a state court of appeals issued a written opinion in a nursing home negligence case brought by the estate of the deceased resident. The case presented the court with the opportunity to discuss when an arbitration agreement is valid if it is signed by someone other than the resident. Ultimately, the court held that the arbitration agreement signed by the resident’s son was invalid because the power of attorney document the resident had executed did not specify that the resident’s loved one had control over her legal affairs.

The Facts of the Case

The plaintiff in this case was the estate of the deceased nursing home resident. Prior to the resident’s admission into the nursing home, she had executed a power of attorney in favor of her son, who was helping her obtain the long-term care that she needed. In 2005, the resident was admitted into the nursing home after her son signed the pre-admission contract. Several years later, the nursing home presented the resident with a voluntary arbitration agreement, which her son also signed.

In 2012, the resident died, allegedly due to injuries she sustained while at the nursing home. The resident’s estate brought a wrongful death lawsuit against the nursing home. In response, the nursing home asked the court to dismiss the case, citing the voluntary arbitration agreement that the resident’s son had previously signed. The trial court rejected the defendant’s request to arbitrate, claiming that the power of attorney document did not give the resident’s son the right to agree to arbitration, and therefore, the arbitration agreement was invalid. The nursing home appealed.

Florida Appellate Court Reiterates that Witness Credibility Is Not at Issue in Summary Judgment Proceedings

Published on: April 10, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, a Florida appellate court issued a written opinion in a slip-and-fall case that was brought by a man who had fallen after slipping on a puddle of oil in a condominium complex. In reversing the lower court’s decision to grant summary judgment in favor of the defendant, the appellate court held that it was improper for the court to assess the credibility of the plaintiff’s witness at the summary judgment stage.

The Facts of the Case

The plaintiff was walking in a common area in the defendant’s condo complex when he slipped and fell after stepping in a puddle of oil. After picking himself up, the plaintiff noticed that the oil was coming from underneath the door to the elevator service closet. He estimated the puddle to be about four feet by five feet.

After the plaintiff informed the defendant of his fall, the defendant sent out an elevator technician to fix the leak. The technician determined that the leak was caused by a seal that had deteriorated. He estimated that the output was about one drip every two seconds; however, he did not provide an estimate regarding when the leak had started.

Establishing Liability in Florida Dog Bite Cases

Published on: April 6, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, a Georgia appellate court issued a written opinion in a dog bite case in which the plaintiff was bitten by a neighbor’s dog after she was invited over to the neighbor’s home. In that case, the court discussed in detail that state’s requirement that the plaintiff establish not only that the dog was vicious or dangerous but also that the defendant knew about the dog’s dangerous nature.Ultimately, the court determined that the plaintiff presented sufficient evidence of the defendants’ knowledge of the dog’s dangerous nature. Specifically, the court pointed to two instances in which the dog had snapped at people when they attempted to feed it. This evidence, the court held, was sufficient evidence to establish that the owners of the dog knew or should have known that the dog could be dangerous.

Florida Medical Malpractice Cases May Be Dismissed for Failure to Obtain a Supporting Medical Expert’s Opinion

Published on: April 3, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Medical malpractice cases comprise a large portion of the cases that are filed in Florida courts each year. To help courts sort through the claims, and to ensure that only meritorious claims are presented to the court, the Florida legislature has implemented a requirement that all medical malpractice lawsuits must be filed with an accompanying certificate of counsel. The certificate must state that counsel has conducted a reasonable investigation into the case and that the plaintiff’s theory of liability is supported by at least one medical expert’s opinion. A failure to file this certificate may result in the dismissal of an otherwise meritorious case.A recent decision issued by a Vermont appellate court illustrates what can happen if a plaintiff fails to file the required certificate.

The Facts of the Case

The plaintiff was the surviving loved one of a woman who had died after ingesting a lethal combination of prescription and non-prescription medication. After the plaintiff discovered how her loved one had died, she filed a wrongful death lawsuit against the doctor who had prescribed the deceased woman the prescription medication. According to the court’s opinion, the doctor had prescribed several different types and doses of opioid medication.

Florida Appellate Court Invalidates Arbitration Agreement, Rejecting Nursing Home’s Argument

Published on: March 30, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, a Florida appellate court handed down a decision in an interesting nursing home negligence case, requiring the court to determine the validity of an arbitration contract signed by a deceased resident’s daughter. The court ultimately rejected the nursing home’s argument that, since the resident was a third-party beneficiary of the admission contract, the resident should be bound by the contract despite her daughter’s lack of legal authority to enter into the contract on behalf of her mother.

A Daughter Signs a Contract on Behalf of Her Incompetent Mother

The resident’s daughter was helping her incompetent mother find a nursing home. After the daughter settled on the defendant nursing home, she signed an admission contract on behalf of her mother. Part of that admission contract was an arbitration agreement. The arbitration agreement waived the mother’s right to use the court system if anything should happen in the future giving rise to a personal injury or wrongful death claim.

Unfortunately, the resident was injured while at the nursing home and later died from complications related to that injury. The resident’s estate filed a wrongful death lawsuit against the nursing home, arguing that the nursing home was responsible for the resident’s injuries and subsequent death.

Appellate Court Refuses To Consider Evidence Presented for the First Time on Appeal

Published on: March 27, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, a Rhode Island appellate court issued a written opinion discussing principles that are important to understand for anyone considering filing a personal injury case in South Florida. The case arose out of a slip-and-fall accident that occurred in a public park. The issue for the court to decide was whether evidence of the city’s knowledge of the dangerous condition was admissible when it was presented to the court for the first time on appeal. The court held that the evidence, as well as any argument stemming from the evidence, was not admissible because it was not presented to the trial court.

A Boy Breaks His Leg While Playing Baseball

The plaintiffs’ son was playing baseball in a public park that was owned and operated by the defendant city. During the game, the plaintiffs’ son slid into home plate and got his lower leg stuck under the base. As he stood up, he broke his leg in two places. The plaintiffs filed a premises liability lawsuit, claiming that the city was negligent in failing to safely maintain the park, including the home plate where their son was injured.

The defendant city claimed that it was immune from liability under the recreational use statute, which protects landowners that allow others to use their land for recreational purposes and do not charge a fee for doing so. The plaintiffs made only a broad objection to the applicability of the recreational use statute, without explaining the basis for the objection. The court ultimately granted the city’s motion for summary judgment, and the plaintiffs appealed.

Plaintiffs with Foreign Object in Body Always Entitled to Presumption of Negligence, Florida Supreme Court Holds

Published on: March 23, 2017 | by Friedman Rodman Frank & Estrada, P.A.

The Florida Supreme Court recently determined that a plaintiff who undergoes a procedure and has a foreign object left in their body is always entitled to a presumption of negligence. Before this decision, a federal appeals court had decided that a plaintiff was not entitled to the presumption where direct evidence of negligence exists. The Florida Supreme Court’s decision changed in this most recent opinion, making it easier for Florida plaintiffs to recover.

Facts of the Case

In 2011, a man was admitted to a hospital for a surgical procedure. During the procedure, the surgeon inserted a drainage tube into his abdomen. These tubes are normally removed after surgery. The tube was removed a few days later, but a section of the tube was accidentally left inside his abdomen.

After the man began experiencing pain in his abdomen, a CT scan showed that the section of the tube was still in his body. The man then had a second surgery to have the tube removed.

Florida Appellate Court Upholds Defense Verdict in Car Accident Case

Published on: March 20, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, a Florida appellate court issued a written opinion in a personal injury case brought by a motorist who was rear-ended by another driver. The court ultimately affirmed the jury’s verdict in favor of the defendant despite the fact that the defendant driver admitted that he was at fault for causing the accident. The court based its opinion on the fact that the jury was presented with conflicting evidence as to the seriousness of the collision, and therefore the jury was free to find that the collision was not the cause of the plaintiff’s injuries.

The Facts of the Case

The plaintiff was driving to the gym when he was struck from behind by the defendant, who was driving a pick-up truck. The plaintiff did not immediately go to the hospital, but went the next day. After being seen by a doctor, the plaintiff was prescribed pain medication and completed three months of physical therapy. The plaintiff filed a personal injury case against the defendant, seeking compensation for his medical bills as well as for his lost wages.

Both the plaintiff and the defendant testified at trial, and offered different versions of what happened on the day of the accident. The plaintiff testified he was completely stopped when the defendant rear-ended him, and that he had to “brace” himself to prevent his head from striking the steering wheel. He explained that his car suffered various types of damage as a result of the collision.