South Florida Personal Injury Lawyers Blog

Florida Appellate Court Reverses Lower Court in Negligent Driving Liability Case

Published on: February 29, 2024 | by Friedman Rodman Frank & Estrada, P.A.

Recently, the district court of appeals for the State of Florida Fifth District issued an opinion in an appeal involving a negligence claim by the Appellant, Carol Ann Kulzer, who claimed injuries and damages in her suit against the Appellees, Greenleaf Trust, and an employee, Sarah Marie Way. Ms. Way was running errands related to her employment with Greenleaf, such as inspecting and readying condominium units for sale when she stopped for lunch. Following lunch, she was heading back to a condominium for a business meeting when she negligently collided her car into the car driven by Ms. Kulzer. At trial, the court granted Greenleaf’s motion for summary judgment, absolving it from any vicarious liability to Ms. Kulzer. Ms. Kulzer appealed, arguing that Ms. Way was within the course and scope of her employment at the time of the wreck, and the appellate court agreed, reversing and remanding the decision for further proceedings.

Facts of the Case

Ms. Way ordinarily worked for Greenleaf in Kalamazoo, Michigan, but was temporarily assigned to work in Ormond Beach, Florida. Her role in Ormond Beach involved inspecting a condominium unit left to Greenleaf. Inspecting the unit consisted of dealing with some of its contents, helping prepare it for market, listing, and sale. Greenleaf paid all of Ms. Way’s expenses associated with her travel and work in Ormond Beach, including her meals. On the day of the incident in question, Ms. Way traveled to the condominium in the morning, left the premises around noon, and was scheduled to attend a 2:00 p.m. work-related meeting at the condo. After leaving her lunch to return to work, Ms. Way caused the wreck with Ms. Kulzer that prompted the suit around 1:46 p.m.

At trial, Ms. Kulzer sued Ms. Way for her negligence in causing the accident and sued Greenleaf on the theory that it was vicariously responsible for the negligence of its employee committed during the course and scope of her employment. Ms. Way admitted fault for the accident. Greenleaf moved for summary judgment, claiming that Ms. Was not within the course and scope of her employment at the time of the wreck. Under current Florida law, known as the coming and going rule, when an employee is on a single-purpose, personal lunch break, away from the workplace, and not engaged in the employer’s business in any manner, the employee is not considered to be within the course and scope of employment for workers’ compensation purposes. Based on the facts presented at trial, the trial court granted Greenleaf’s motion for summary judgment, concluding that under the coming and going rule, Ms. Way was not acting within the scope of her employment.

Florida Appeals Court Affirms Lower Court Decision in Florida Sovereign Immunity Case

Published on: February 17, 2024 | by Friedman Rodman Frank & Estrada, P.A.

In a recent appeals case, the District Court of Appeals of the State of Florida Third District produced an opinion for an appeal involving sovereign immunity for Miami-Dade County in a vicarious suit alleging that a bus driver acted in a manner exhibiting wanton and willful disregard of rights or safety. The plaintiff, Michael Polanco, sued a bus driver, and her employer, Miami-Dade County following an incident where he was hit by a bus. Polanco was riding as a passenger on a Miami-Dade County bus. When the bus pulled over at a scheduled stop, there was a heated exchange between Polanco and the bus driver. Thereafter, Polanco exited and crossed in front of the bus. The bus driver then pulled away from the bus stop, and in doing so struck Polanco. The exchange between the bus driver and Polanco is captured on video, though the actual point at which the bus makes contact with Polanco is not.

Polanco sued the bus driver, as well as her employer, Miami-Dade County. At trial, the County answered, asserting it was sovereignly immune from suit and filed a motion for summary judgment, asserting its employee struck the passenger intentionally and that such conduct exhibited a wanton and willful disregard of human rights and safety, thus rendering the County sovereignly immune from liability. In response, Polanco presented evidence that he “walked essentially into the blind spot of the bus” when he was hit, and therefore the bus driver would not have been able to see Polanco when she pulled out of the bus stop. Subsequently, the trial court denied Miami-Dade’s motion, and they shortly appealed the decision.

On appeal, Miami-Dade argued to the appellate court that the trial court was mistaken in its ruling, stating that there was no genuine dispute as to whether the bus driver acted in a manner exhibiting wanton and willful disregard of Polanco’s rights or safety. The appeals court disagreed with Miami-Dade, affirming the trial court decision. The appellate decision stated that they affirmed the trial court’s order denying the County’s motion for summary judgment and that the lower court decision correctly concluded that there remains a genuine dispute as to whether the bus driver acted in a manner exhibiting wanton and willful disregard of Polanco’s rights or safety.

Cruise Ship Negligence Case Reversed on Jury Issue by Federal Circuit Court

Published on: February 13, 2024 | by Friedman Rodman Frank & Estrada, P.A.

Recently, the United States Court of Appeals for the Eleventh Circuit issued an opinion in an appeal involving a negligence claim for an injury sustained on a cruise ship. The plaintiff, Carelyn Fylling, sued the Defendant, Royal Caribbean Cruises, Ltd., after Fylling tripped, fell, and struck her head while entering deck five of Royal Caribbean’s Harmony of the Seas cruise ship. Following jury selection and the opening arguments at trial, the district court became aware that one of the impaneled jurors, Juror Eight, had a niece who worked for the Royal Caribbean Cruises. The district court did not remove Juror Eight, did not subject her to additional questions about her niece and any potential for bias, and permitted her to deliberate, even though there were enough jurors to return a verdict without her. The jury ultimately found Royal Caribbean negligent, but also found Fylling partially responsible, reducing her recovery by ninety percent. Fylling then appealed.

Facts of the Case

On March 4, 2017, Fylling injured her head while entering deck five of Royal Caribbean’s Harmony of the Seas cruise ship. She sued Royal Caribbean in the United States District Court for the Southern District of Florida for negligence. During jury selection for the trial, the district court allowed counsel for each party to question the jury, including individually questioning potential jury members. The district court did not ask Royal Caribbean’s proposed question about whether the prospective jurors had any relatives who worked for a cruise line.

Finally, the district court asked the jurors, “Can you think of any reason why you cannot sit on this jury and render a fair and impartial verdict based on the evidence and the law as I instruct you?” Only one prospective juror raised his and, answering that he was an investor in Royal Caribbean and he was recused. The district court asked again, and nobody on the panel responded.

Florida Appellate Court Affirms Lower Court in Florida Hit-And-Run Case, Finding No Respondeat Superior

Published on: February 3, 2024 | by Friedman Rodman Frank & Estrada, P.A.

Recently, the district court of appeals for the State of Florida Fourth District issued an opinion in an appeal involving a hit-and-run liability claim by plaintiff Alicia McKee against defendant Crestline Hotels & Resorts, LLC d/b/a Hilton Singer Island Oceanfront/Palm Beaches (Crestline). The case arises from a hit-and-run auto accident that seriously injured the plaintiff and killed her husband. The plaintiff sought to impose liability against Crestline on a theory of respondeat superior—that the accident was caused by a Crestline employee acting within the scope of his employment. The circuit court concluded as a matter of law that the employee driver was not acting in the scope of his employment when he hit the plaintiff and her husband in a crosswalk. McKee appealed.

Facts of the Case

On an evening in December 2017, Alicia and Paul McKee were visiting West Palm Beach. At about 9:13 p.m., they began to cross Quadrille Boulevard in the crosswalk at Hibiscus Street on a do-not-walk signal. As they crossed, they were struck by an SUV driven by Anthony Horsford. Horsford had a green light as he traveled south on Quadrille. Although Horsford denied speeding, an eyewitness estimated that Horsford was going about 40 to 50 mph in a 35 mph zone. After the collision, Horsford stopped, got out of his vehicle, looked at the McKees lying in the street, and then drove off.

On the day of the incident, Horsford was employed by Crestline as a banquet manager at the Hilton Singer Island Resort. He did not have set hours or punch a time clock. His duties included setting up and overseeing banquet events, and his responsibility for an event continued “until everything was cleaned up.” He was thus in charge of every part of the banquet “from start to finish.” On the day of the incident, Horsford left a banquet around 8:45 p.m. About 10-15 minutes into the drive, Horsford felt like he hit a “pothole” as he was driving south on Quadrille. He testified that he was not on his cell phone or otherwise distracted at the time of impact. Prior to feeling like he hit a pothole, he did not see anyone near the roadway. Although Horsford denied making any phone calls or using his cell phone during his drive home, other evidence shows that Horsford was using his personal cell phone near the time of the incident. This evidence was ambiguous, however, as to whether he was using his phone to place a work-related call at the precise moment his car struck the McKees.

Florida Appeals Court Affirms Lower Court Decision in Medical Malpractice Case

Published on: January 20, 2024 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, the Third District Court of Appeals in Florida issued an opinion in an appeal involving a final summary judgment entered in favor of the defendants, appellees the University of Miami, Xue Zhong Liu, M.D. and Rebecca Rodriguez, L.P.N. After going on vacation in Florida, the patient complained of a severe earache and went to an ENT clinic operated by the University of Miami to seek medical assistance. Nurse Rodriguez took the patient’s blood pressure, which was 233/150, which constitutes severe hypertension. Dr. Liu asserts that he instructed the patient to go to the emergency room for evaluation and treatment while the patient claims that no such instruction was given. The patient did not go to the emergency room and nine days later, suffered a debilitating hemorrhagic stroke that was precipitated by an aneurysm due to the severe hypertension. The patient then filed suit, alleging that appellees caused her to have a stroke by failing to provide expeditious treatment of her severe hypertension, and by failing to inform her of the dangers of high blood pressure coupled with ear pain.

Facts of the Case

After seeking medical assistance from the ENT clinic affiliated with the University of Miami, the patient did not go to an emergency room. She claims that no instruction to go to an emergency room was given while Dr. Liu asserts that he instructed her to go to an emergency room for evaluation and treatment. The medical record reflects the following notation by Nurse Rodriguez: “Patient BP is elevated she stated it always comes up high. She has consulted with her Primary doctor.” The medical record is otherwise silent as to what occurred with respect to treatment for the hypertension. The record further reflects that Dr. Liu removed excess earwax from the patient’s ear and discharged her. Nine days later the patient experienced a debilitating hemorrhagic stroke triggered by an aneurysm due to her severe hypertension.

At trial, the patient filed a medical malpractice action against appellees alleging in her operative complaint that appellees caused her stroke by failing to provide expeditious treatment of her severe hypertension, and by failing to inform her of the dangers of high blood pressure coupled with ear pain. During the discovery process, the patient’s action transformed from a failure to treat case to a failure to refer case, arguing that the appellees should have referred the patient to the emergency room for immediate care, and that their failure to do so caused her eventual stroke. The trial court ultimately entered a final summary judgment in favor of the defendants, ruling against the patient. The patient then filed a timely appeal.

Florida Appeals Court Affirms Lower Court in Premise Liability Case

Published on: January 19, 2024 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, the District Court of Appeal of the State of Florida Second District issued an opinion in an appeal involving a duty to warn or duty of reasonable care premise liability action between the Appellant, Melanie Chadwell Norris, and the Appellee, Alan Rodriguez. Ms. Norris sustained injuries after tripping on Mr. Rodriguez’s concrete driveway and claimed that she was a public invitee because she fell in the portion of the driveway located within a public right-of-way. The trial court categorized Ms. Norris as an uninvited licensee to whom Mr. Rodriguez owed no duty to warn of open and obvious dangers. The appeals court affirmed the lower court decision, rejecting the appeal by Ms. Norris.

After returning home from watching a movie, Ms. Norris walked across the street from her boyfriend’s house while her boyfriend went to get their dog for a walk. It was nighttime and dark outside. After crossing the street, Ms. Norris attempted to cross over Mr. Rodriguez’s property to access a public sidewalk. Ms. Norris allegedly tripped over the corner of the apron of the driveway where the concrete of the driveway was broken and raised, sustaining injuries in the process. Ms. Norris then sued Mr. Rodriguez for her injuries, claiming that she was a public invitee on the property and that Mr. Rodriguez owed her a duty to use reasonable care in maintaining his property in a reasonably safe condition. At trial, both parties moved for summary judgment on liability, and the court granted final summary judgment in favor of Mr. Rodriguez, holding that Ms. Norris was at best an uninvited licensee when she entered his property. Ms. Norris then filed an appeal.

On appeal, Ms. Norris argued that she fell in an area of Mr. Rodriguez’s driveway that was located within the county right-of-way en route to the public sidewalk. The appeals court disagreed, finding that Ms. Norris attempted to cut across Mr. Rodriguez’s driveway for her own fancy, to reach the public sidewalk to walk her dog. The court further states that there was no evidence that Mr. Rodriguez held his property open to the public. The appellate opinion states that as an uninvited licensee Mr. Rodriguez owed Ms. Norris a duty “to refrain from willful misconduct or wanton negligence . . . and to refrain from intentionally exposing [Ms. Norris] to danger”—there is no evidence that Mr. Rodriguez breached these duties in the present case. The appeals court affirmed the lower court decision, striking down the appeal.

Florida Appeals Court Affirms Lower Court Ruling in Negligence Case, Siding with Plaintiffs

Published on: January 13, 2024 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, the Third District Court of Appeals in Florida issued an opinion in an appeal involving a negligence case between plaintiffs, Anny K. Berastain and her daughter, Natalie, and the defendant, Miami-Dade County (the County). The plaintiffs filed a negligence action following injuries suffered by Natalie while she was in the care of the County’s after-school program. The trial court denied the County’s motion for a directed verdict, new trial, and remittitur. The County then appealed following a final judgment after a jury verdict in favor of the plaintiffs. The appellate court was unimpressed by the appeal and affirmed the final judgment as well as the trial court’s orders denying the County’s motion for directed verdict, a new trial, and remittitur.

Facts of the Case

According to the allegations at trial, on May 13, 2015, Natalie, who was seven years old at the time, was injured as a result of the County’s negligent supervision of the children in her after-school program. According to the operative complaint, the children were engaged in disorderly and dangerous practice, and the County failed to properly supervise them. At trial, the County denied that it breached any duty to Natalie or that any such breach caused her injuries. Multiple witnesses testified at the three-day trial, including Natalie, Ms. Berastain, and the County employee who was supervising Natalie on the day of the incident, Monique Perez. Ultimately, the jury determined that the County was 95% negligent and that Natalie was 5% negligent and subsequently awarded damages of $3,954.84 for past medical expenses, and $105,000 for Natalie’s past pain and suffering.

Florida Appeals Court Upholds Compensation Claim, Affirming Lower Court Decision

Published on: January 10, 2024 | by Friedman Rodman Frank & Estrada, P.A.

Recently, the First District Court of Appeals in Florida issued an opinion in an appeal involving a workers’ compensation claim from a worker serving as a firefighter who suffered a heart attack and subsequently received a heart transplant after being diagnosed with COVID-19. According to the record, the firefighter was hired by Seminole County as a firefighter in 1993 after a clean pre-employment physical. In the early 2000s, he suffered cardiac problems that Seminole County accepted as compensable. Following his diagnosis, he received yearly treatment. In December of 2020, the firefighter tested positive for COVID-19. In January of 2021, he suffered a heart attack. After multiple surgeries, he received a heart transplant. Following his procedures, the firefighter filed a Petition for Benefits seeking indemnity and medical benefits on grounds that his heart attack stemmed from “heart disease” and thus the statutory presumption of work causation under section 112.18 applied to his case. Initially, Seminole County conditionally accepted the heart attack as compensable, but the county later denied compensability.

The Facts of the Case

The firefighter sought compensability under section 112.18.2 while Seminole County asserted as a defense, among others, that the claim was denied in its entirety because the criteria for the presumption were not satisfied. At the merits hearing, it withdrew the defense and stipulated that section 112.18 applied and that the worker was entitled to the statutory presumption of work causation. As a result, the sole issue before the Judge of Compensation Claims (JCC) was whether Seminole County successfully rebutted the presumption of work causation. At the hearing, the JCC accepted Seminole County’s argument that COVID-19 caused the worker’s heart disease, heart attack, and heart transplant. However, the JCC also found that Seminole County failed to rebut the presumption of work caused by proving that the worker contracted the virus outside of work. The JCC summarily denied Seminole County’s motion for rehearing.

Florida Appeals Court Finds Against Plaintiff in Liability Case, Affirming Trial Court

Published on: December 31, 2023 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, the District Court of Appeals of the State of Florida Fourth District issued an opinion in an appeal involving a premises liability action arising from a slip-and-fall incident at a restaurant. The suit was between Elizabeth Sentz, the Appellant, and Bonefish Grill, LLC (Bonefish Grill), the Appellee, arising from an incident where Sentz slipped and fell after a brunch at a Bonefish Grill location.

Facts of the Case

The issue arose when Sentz went to a Bonefish Grill location with four friends for brunch. The group was at the Bonefish Grill for a couple of hours, and Sentz had something to eat and drink. Near the end of her visit, Sentz visited the restroom. She slipped on water on the floor about eight to 12 feet from the bathroom door. The flooring was tile, with the look of hardwood. She described the area where she fell as a dining area separated by a wall from where she was seated with her friends. Prior to her fall, Sentz did not see the liquid. She did not know how that liquid got onto the floor, and how long the liquid had been on the floor before her fall. The puddle of liquid had a diameter of about 12 to 18 inches. She saw pieces of melted ice in the puddle.

Prior to returning to her table, a server came around the corner and Sentz notified her of the spill, telling the server that she had fallen. The server replied that she was aware of the spill and had meant to clean it up before. Other than that interaction, Sentz did not speak with the server at any other time. Sentz argued sufficient record evidence showed that BFG was aware of the dangerous condition, as the female server told Sentz that she was already aware of the presence of liquid and had meant to return to clean it prior to Sentz’s fall.

Multiple People Injured, Including Police Officer, in Suspected DUI Miami-Gardens Crash

Published on: December 20, 2023 | by Friedman Rodman Frank & Estrada, P.A.

From year to year, Florida is consistently one of the states with the most annual traffic accidents. One of the most common ways to measure the risk of fatal car accidents from state to state is the metric of deaths per 100 million miles traveled within a particular state. This statistical measurement is helpful for calculating driving risks for various states while controlling for disparities in population from state to state. According to the Insurance Institute for Highway Safety, the deaths per 100 million miles traveled within Florida is 1.60, placing it ahead of all but a few other states in the nation when it comes to drivers and passengers killed in car accidents.

Fatalities in Florida car accidents have been on the rise since 2018, and currently, nearly 40% of all Florida vehicle crashes result in injuries. Accidents occurring on highways can be especially devastating due to the higher speed limits on highways, resulting in more serious outcomes than crashes occurring at slower speeds. The harm isn’t reserved for people in cars either. Florida sees a significant amount of pedestrian deaths and injuries stemming from car accidents. Drivers should always be aware of their surroundings and be cautious of pedestrians walking and interacting around the road.

When it comes to vehicle accidents, drivers and passengers in Florida need to be aware of the variety of factors that can be used to calculate pain and suffering damages after a car collision. These factors include but are not limited to the injury category, the time required for recovery, treatments, and the severity of the crash. These different elements can help pinpoint the necessary compensation in court after a car crash. Many of these factors are related, as the more serious the crash, the more likely the time to fully recover will be longer. A recent news article discussed a recent dangerous crash in Miami-Gardens where impaired driving was a suspected cause.