South Florida Personal Injury Lawyers Blog

State Appellate Court Determines Plaintiffs Can Bring Wrongful Birth Lawsuits

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

Earlier this year, an appellate court in Iowa issued a written opinion in a medical malpractice case discussing the interesting topic of whether a plaintiff should be permitted to bring a medical malpractice case seeking compensation for the wrongful birth of a child. Ultimately, after surveying the laws of other states and taking into account the evolution of medical care, the court concluded that the plaintiff couple should be permitted to bring the lawsuit.

The Facts of the Case

The plaintiffs were expecting a baby boy. The defendants were several doctors who had provided the plaintiffs with pre-natal medical care throughout the pregnancy. A few months into the plaintiff-wife’s pregnancy, an ultrasound was performed with one of the defendant doctors reviewing the results.

The ultrasound indicated that the couple’s unborn son had a small head. Specifically, the circumference of the baby’s head was within the third-to-sixth percentile. However, that was never made known to the plaintiffs, and no further tests were performed.

Slip-and-Fall Plaintiff’s Case Dismissed for Lack of Evidence

Published on: June 29, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, a state appellate court issued an interesting opinion in a slip-and-fall case that presented the court with the opportunity to discuss the res ipsa loquitur doctrine. The case involved somewhat bare allegations made by the plaintiff that were unsupported by any other evidence. As a result, the court determined that the doctrine did not apply and that the lower court was proper not to infer that the defendant was negligent.

The Facts of the Case

The plaintiff slipped and fell through a set of wooden stairs at the home where she was living with the defendant. At the time, the defendant was the sole owner of the home. Several years after her fall, the plaintiff filed a personal injury lawsuit, seeking compensation for the injuries she sustained in the fall.

The plaintiff claimed that the stairs were rotted due to an insect infestation and that the defendant should have been aware of the problem and warned her of the potential danger. However, since the plaintiff had no evidence that the defendant knew of the stairs’ condition, she asked the court to apply the doctrine of res ipsa loquitur to infer that the defendant was negligent.

Report Indicates Driver in Fatal Auto-Pilot Accident Was Given Many Warnings Prior to Fatal Collision

Published on: June 26, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Last year, a Florida motorist was killed in a traffic accident when the Tesla car he was operating crashed into the side of a semi-truck. Evidently, the Tesla was traveling at highway speeds when a semi-truck pulled in front of the car. At the time, the Tesla was in auto-pilot mode and did not stop in time to avoid a collision with the side of the truck.Since this fatal accident was the first involving a vehicle with the new auto-pilot technology, it raised many practical and legal questions. For example, which parties should be responsible when a self-driving car is involved in a serious accident?

In a recently released report by the National Transportation Safety Bureau, it was revealed that the driver of the Tesla was given numerous warnings to retake control of the vehicle prior to the fatal collision. According to an article detailing the report’s findings, the driver was heavily relying on the vehicle’s auto-pilot technology. In fact, of the 41 minutes leading up to the accident, the vehicle was in auto-pilot mode for over 37 minutes. Of those 37 minutes, the driver’s hands were only on the wheel for about 30 seconds. The report also explained that the vehicle’s warning system recommended that the driver place his hands back on the wheel seven times in the moments leading up to the accident.

Who Is Responsible in Florida When Someone Causes an Accident Using a Borrowed or Stolen Car?

Published on: June 19, 2017 | by Friedman Rodman Frank & Estrada, P.A.

In many South Florida auto accident cases, there are actually several parties who can potentially be held responsible for a victim’s injuries. For example, if an employee causes an accident while on the job, both the employee as well as the employer can often be named in a subsequent personal injury lawsuit. The legal doctrine that allows this type of claim against a third party is called vicarious liability.As a general rule, under the theory of vicarious liability, when a driver causes an accident while using another person’s car, both the driver as well as the vehicle’s owner may be held liable to the accident victim for any injuries. This general rule stands true to the extent that the person driving the car had permission to use the vehicle, and their use of the vehicle did not exceed the permission given by the car’s owner. A recent Florida appellate court case involving an accident that was caused by a driver who took a car without the permission of the owner illustrates the outer bounds of vicarious liability.

The Facts of the Case

The plaintiff was riding his motorcycle when he was struck by another motorist. The car that struck the plaintiff was owned by a rental car agency and was rented to a woman who was not involved in the accident. There was contradicting evidence regarding how the driver obtained the keys to the car. The driver lived with the woman who rented the car, and he claimed that he took the keys off the kitchen counter. However, the woman claimed that she kept the keys in her locked room and never gave the driver permission to use the vehicle.

Florida Court Finds Medical Release Waiver to Be Invalid, Allowing Medical Malpractice Case to Proceed

Published on: June 19, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, the District Court of Appeal for Florida’s Fourth Circuit issued an interesting written opinion in a medical malpractice case requiring the court to determine if a medical release waiver signed by the plaintiff should prevent the plaintiff’s medical malpractice case from proceeding to trial. Ultimately, the court concluded that the waiver’s language was vague and would not necessarily inform the signer which rights they were giving up by signing the document. As a result, the waiver was deemed invalid, and the plaintiff’s case was permitted to proceed.

The Facts of the Case

In 2013, the defendant performed spinal surgery on the plaintiff. Prior to the surgery, however, the defendant doctor requested that the plaintiff sign a medical release waiver. The waiver stated that the doctor does not carry malpractice insurance and that by signing the waiver, the plaintiff agreed not to file a lawsuit against the doctor because the plaintiff understands that the defendant “will do the very best to take care of me according to community medical standards.” The plaintiff signed the agreement, and the surgery was performed.

During the surgery, the plaintiff’s ureter was cut, causing significant injuries. Notwithstanding the medical release waiver, the plaintiff filed a medical malpractice claim against the doctor. Not surprisingly, the doctor responded by asking the court to dismiss the case based on the plaintiff’s agreement not to sue in the event anything went wrong.

Florida Court Limits Application of the “Express Assumption of Risk” Doctrine

Published on: June 15, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, a Florida appellate court issued a written opinion in a premises liability case brought by a man who tripped and fell while practicing on-stage with a church band. The case presented the court with the opportunity to discuss the “assumption of the risk doctrine” and when it is appropriate for a court to prevent a plaintiff’s case from proceeding by determining that the plaintiff assumed the risks involved with the activity that led to his injuries.

Assumption of the Risk

In some cases in which a person is injured while engaging in an activity that he or she knew to be dangerous, courts may prevent that person from holding other parties responsible for their injuries, based on the theory that the plaintiff assumed the risk of the dangerous activity. Generally, in order to establish an assumption of the risk defense, a defendant must be able to show that the injured party knew that the activity was dangerous and willingly participated in the activity despite knowledge of the risks. Assumption of the risk defenses are common in cases involving contact sports or other high-risk activities.

The Facts of the Case

The plaintiff was a member of the defendant church and also played in the church band. One day during rehearsals, the plaintiff tripped and fell on an unsecured cord that ran across the stage to power the electric bass guitar. The plaintiff filed a premises liability lawsuit against the church, arguing that the church failed to safely maintain the stage area.

Time Limit to File Wrongful Death Claim Extended When Defendant Tried to Cover Up Death

Published on: June 12, 2017 | by Friedman Rodman Frank & Estrada, P.A.

After a 38-year-old man was shot and killed, his mother and his five-year-old son filed survival and wrongful death claims against the shooter. The man was killed in August 2009, and on June 9, 2015, the man’s mother and the man’s then five-year-old son filed a complaint against the shooter. They alleged wrongful death based on negligence, a survival action based on negligence, wrongful death based on gross negligence, a survival action based on gross negligence, wrongful death based on battery, a survival action based on battery, and fraudulent conveyance.The defendant moved to dismiss the case, and the court granted the motion to dismiss as to the wrongful death claims because the court said they were filed too late. The plaintiff appealed the decision, and in a recent decision, a state court of appeals reinstated the claims.

Under that state’s laws, a wrongful death claim had to be filed within three years of the date of death. However, the state provided exceptions under certain circumstances. One statute provided that a wrongful death claim filed by a minor plaintiff was tolled during the period of minority. Another statute stated that if a plaintiff did not know about a claim due to an adverse party’s fraud, the time period for the claim began to run when the party discovered or should have discovered the fraud through ordinary diligence.

Errant Golf Ball Strikes Baby in Stroller on Nearby City-Owned Walking Path

Published on: June 5, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, an appellate court in California issued a written opinion in a premises liability case that was brought by the mother of a child who was struck by an errant golf ball as she was wheeling her son in a stroller on a walking path owned and maintained by the city. The appellate court hearing the case determined that the city was not entitled to government trail immunity because the dangerous hazard that caused the injury was not a condition of the trail itself.

The Facts of the Case

The walking path where the injury occurred directly abuts a private golf course. A few years before the accident, the golf course installed a fence and strategically planted large trees to decrease the likelihood that golf balls would leave the course. However, there was no evidence that the city took any precaution regarding golf balls that were hit out of the boundaries of the golf course.

The plaintiff filed a personal injury lawsuit against the city as well as the golf course. The plaintiff claimed that the city failed to take any action to remedy the known dangerous condition created by the potential of errant golf balls.

Appellate Court Allows Evidence of Out-of-Court Settlements in Medical Malpractice Case

Published on: June 1, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, one state’s appellate court issued a written opinion in a medical malpractice case that required the court to determine whether the single doctor named as a defendant should be able to introduce evidence that there had originally been several other doctors named as defendants, but they had all settled with the plaintiff before the case reached trial. Ultimately, the court determined that the contested evidence was relevant to the case and should have been admitted.

The Facts of the Case

The plaintiffs were the surviving loved ones of a man who died while he was being treated by the defendant doctor after he slipped and fell while playing racquetball. The defendant was one of several doctors who treated the plaintiffs’ loved one, and each of the other treating physicians had originally been named in the lawsuit. However, the plaintiffs agreed to settle the cases against the other physicians out of court and proceed to trial against only the defendant.

In a pre-trial motion, the plaintiffs asked the court to prevent the defendant from explaining to the jury that there were originally several other doctors named in the lawsuit, but they had reached settlements with the plaintiffs. Additionally, the plaintiffs asked the court to prevent the defendant from arguing that the subsequent acts of these other non-present doctors acted as an intervening cause of their loved one’s death. The trial court denied both of the plaintiffs’ motions, and the case proceeded to trial. The jury found in favor of the defendant, and the plaintiffs appealed.

The Dangers of Boating on Florida Waters

Published on: May 25, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Boating, like any other method of transportation, has its inherent risks. While most boats are safely constructed, and most operators are knowledgeable about how to safely operate a marine vessel, accidents can happen, especially when a boat is being operated by an inexperienced or intoxicated driver.In Florida, there is no special license needed to operate a boat. In fact, anyone born before 1988 does not need any certification to operate a boat. Those born after January 1, 1988 must obtain a Boating Safety Education I.D. card issued by the Florida Fish and Wildlife Commission. However, once obtained, this card is valid for life.

Air boat tours are popular across Florida. While air boat operators are normally experienced, in Florida, there is no requirement that these boats have any safety devices, such as seat belts, airbags, or even windshields. These boats do not have brakes and are often operated at a high rate of speed. In addition, due to the design of these boats, they are capable of suddenly stopping short if driven over dry land.