South Florida Personal Injury Lawyers Blog

State Appellate Court Reverses Judgment for Defendant in Bus Accident Case

Published on: November 1, 2016 | by Friedman Rodman Frank & Estrada, P.A.

A panel of the California Court of Appeals recently published an opinion reversing a trial court’s entry of a judgment favoring the defendant in a case filed by a woman who was injured while boarding a shuttle bus operated by the defendant. The appellate court found that the lower court’s decision not to impose at least a duty of ordinary care on the defendant was not justifiable under the circumstances. Since the previous judgment in favor of the defendant has been reversed, the plaintiff’s claim will return to the trial court to proceed toward a settlement, trial, or other disposition.

Plaintiff Is Injured Boarding a Shuttle Bus to the Defendant’s Casino

The plaintiff in the case of Huang v. The Bicycle Casino was injured in a fall when she was pushed to the ground by other passengers as they all attempted to board a shuttle bus that was operated by the defendant as part of a promotion to attract customers to a casino. According to the facts discussed in the opinion, it was relatively common for there to be more passengers attempting to board the shuttle buses than there were seats available, which resulted in a chaotic boarding situation that the plaintiff alleged was the cause of her broken hip that she suffered when she was pushed to the ground. The plaintiff later filed a personal injury lawsuit against the defendant, seeking damages as compensation for her injuries.

The Trial Court Grants Summary Judgment to the Defendant on All Claims

After the plaintiff’s case was filed, the parties disputed the plaintiff’s claim that the defendant was providing transportation to the public as a “common carrier,” a designation that triggers a heightened duty to ensure passengers’ safety. The defendant successfully argued to the trial court that since the shuttle buses do not collect a fare, they should not be treated as a common carrier. The trial court found under the circumstances that the defendant only had a duty to provide ordinary care and that the plaintiff’s injuries were outside the realm of that duty. As a result of these findings, the trial court entered judgment for the defendant on all of the plaintiff’s claims, forcing her to file an appeal to continue her case.

Smart Phone Use by Teens While Driving Indicates an Increased Risk of Other Dangerous Behaviors

Published on: October 27, 2016 | by Friedman Rodman Frank & Estrada, P.A.

A recently published news report discussing an insurance industry study of teen driving behaviors indicated the unsurprising finding that teen drivers who use their smart phones while driving are more likely to engage in other dangerous driving behaviors as well as be involved in an accident. According to a survey conducted nationwide by State Farm on teens aged 16 to 19 years, over 80% of those surveyed admitted to using their smart phone to make calls, send or read text messages, or even watch videos while behind the wheel. Although a large majority of teen drivers admitted to at least some smart phone use while driving, those who admitted to using their phones the most often also reported being involved in the most accidents.

The Link Between Smart Phone Use and Other Dangerous Driving Behaviors

One interesting finding mentioned in the article is the correlation between teen drivers who use their smart phones while driving and other risky or dangerous driving behaviors that may lead to accidents. Many of the teens who have been involved in an accident and admit to using their phones while driving got into an accident due to causes unrelated to cell phone use.

Notably, the article discusses the results of a self-reported survey, and the respondents may not have been completely forthcoming about their smart phone use while driving or the details of any previous accidents, but a clear and significant pattern remains. Teen drivers who tend to use their smart phones while behind the wheel are also more likely to speed, drive while impaired, and drive without wearing a seatbelt.

Florida Man Dies in Alcohol-Related Boat Accident After Homemade Vessel Capsizes

Published on: October 24, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The death of a man in Key West earlier this month should serve the public as a sad reminder of the dangers of operating any vehicle while impaired by alcohol or drugs. The accident, which was reported by a local news source, occurred on October 14 and resulted in the death of a 69-year-old man who was aboard the vessel that capsized. According to details released by local police, the cause of death was most likely drowning, although all of the occupants on board the craft claimed to be too intoxicated to remember what happened and were unable to report details of what happened to the police.

Intoxication Cannot Be Used as a Defense to Most Civil Accusations of Wrongdoing

Although police have reported that all of the surviving men who were on board the boat when it capsized were too drunk to remember the details of the crash, it is possible that they are using their intoxication as an excuse not to cooperate in the investigation. This may be because the men are fearful of criminal charges being filed based on the incident. In the event a criminal or civil case is pursued against any party involved, the intoxication of whoever was responsible will not serve as an excuse.

Under Florida law, intoxication cannot generally be used to defend against allegations that a person had the required mental state to commit a tort. In most personal injury cases, the plaintiff is required to prove that the defendant was negligent. A defendant cannot claim that they were intoxicated and therefore not negligent. In fact, proving intoxication may actually satisfy one or more elements of the tort the plaintiff is seeking to establish.

Appellate Court Rejects $885,000 Verdict Against Educational Institution in Auto-Pedestrian Accident Case

Published on: October 19, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The California Court of Appeals recently published an opinion reversing a jury’s verdict in favor of a 14-year-old boy who was injured in a 2012 auto-pedestrian accident involving an instructor employed by the defendant who was driving home from work when the accident occurred. The lawsuit, which was originally filed against both the driver and his employer, alleged that the employer was liable for the injuries caused by the driver because he was acting within the course of his employment when the crash occurred. Although the verdict against the employer was reversed, the pretrial settlement that the plaintiff reached with the driver of the vehicle will remain in effect to help compensate him for the injuries that were suffered in the crash.

Teen Plaintiff Is Struck by Culinary Instructor as He Returns From Work

The plaintiff in the case of Jorge v. Culinary Institute of America was a boy who was 14 years old when he was struck by a vehicle while walking with his girlfriend and suffered serious injuries. The driver of the car that hit the boy was employed as an instructor at a culinary institute that was operated by the defendant, and he was returning to his home after his workday when he injured the plaintiff.

The plaintiff filed an auto-pedestrian accident claim against both the driver and his employer, arguing that the driver was returning from work “in service of the employer” when the accident occurred. After the jury found that the driver was negligent in causing the accident, his auto insurance company negotiated a $30,000 settlement with the plaintiff before the jury determined the total amount of damages to which the teen was entitled. After the partial settlement was reached, the Culinary Institute was the only remaining defendant in the case and was unable to have the claim against them dismissed.

Court Applies “Discovery Rule” to Allow Plaintiff’s Wrongful Death Claim to Proceed

Published on: October 17, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Supreme Court of the State of Illinois recently released a decision reversing two lower court rulings and ultimately preserving a wrongful death plaintiff’s right to recover damages from a defendant against whom he did not file a claim until the state’s statute of limitations had appeared to expire. The court found that the “discovery rule” applies to wrongful death by medical malpractice claims in that state, and the plaintiff’s right to hold medical providers accountable for their negligence would be unfairly taken away if the claim were not permitted to proceed. Since the dismissal of the plaintiff’s claim has been reversed, his claim for compensation will proceed toward a settlement or trial.

The Plaintiff’s Mother Dies While Under the Care of the Defendants

The plaintiff in the case of Moon v. Rhode is the son of a woman who died on May 29, 2009 after she was hospitalized to treat a gastrointestinal issue. After her death, the plaintiff had an investigation performed and was notified by medical experts that two of the attending physicians were likely negligent in failing to diagnose or treat respiratory problems that arose after she was admitted to the hospital, which ultimately led to her death.

The plaintiff filed a medical malpractice and wrongful death lawsuit against the physicians, seeking damages for his mother’s death. During the course of the lawsuit, the plaintiff requested that a different expert review his mother’s diagnostic imagery reports, and he was notified on March 4, 2013 (after the statute of limitations appeared to expire) that the likely cause of his mother’s death was a previously undiagnosed condition that should have been noticed by her radiologist, who was not a party to the ongoing lawsuit.

State Supreme Court Accepts Award of Future Earnings to Injured Plaintiff Who Was Unemployed

Published on: October 12, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Louisiana Supreme Court recently released a ruling in a negligence lawsuit affirming a district court’s decision to award a plaintiff over $250,000 in damages as compensation for lost future earnings as a result of injuries that she had suffered due to the defendant’s negligence. The defendant appealed the district court’s ruling, claiming that the plaintiff was not employed when she suffered the injuries and that it was inappropriate for the court to award her future earnings as part of the damages award. Based on the high court’s ruling after the plaintiff’s appeal, the defendant will most likely be required to pay the damages awarded to the plaintiff.

The Plaintiff Suffered Serious Injuries While Rock Climbing

The plaintiff in the case of Fecke v. Louisiana State University was injured after she fell from a rock climbing wall that was operated by the defendant. The plaintiff alleged that an employee of the defendant acted negligently, causing her fall. She sought damages from the defendant to compensate her for the expenses and losses related to the injuries she suffered in the fall.

After a jury trial on the plaintiff’s claim, the defendant was found liable for her injuries and ordered to pay a total of approximately $1.44 million in damages to the plaintiff as compensation for their negligence. As part of the final verdict, the plaintiff was awarded $262,500 in compensation for future income that she would be unable to earn as a result of her injuries.

State Appellate Court Rejects Plaintiff’s Claim of Bad Faith Against Insurance Company in Auto Accident Case

Published on: October 11, 2016 | by Friedman Rodman Frank & Estrada, P.A.

One state’s supreme court recently published a decision affirming a district court’s ruling in favor of the defendant in a personal injury claim. The plaintiff alleged that the defendant, an insurance company that represented the other driver involved in an accident, had unreasonably rejected her initial claim for damages related to injuries that she suffered in an auto accident. The state supreme court ultimately decided that the defendant had reasonable grounds to challenge the plaintiff’s claim because there were conflicting accounts of the accident itself, as well as the source of the injuries the plaintiff claimed to have suffered in the crash. Although the high court affirmed the ruling favoring the defendant concerning the plaintiff’s bad-faith claim, the plaintiff may still be entitled to compensation from the defendant for her injuries.

The Plaintiff’s Vehicle Is Struck by Another in the Parking Lot of an Apartment Complex

The plaintiff in the case of Holloway v. Direct General Insurance Company is a woman who was involved in an accident with a driver who was insured by the defendant. According to the facts discussed in the appellate opinion, the plaintiff and the other driver gave conflicting accounts of the accident, and police were never called to report on the crash. Although the accident occurred at a low speed, and the damage to the vehicles was relatively minor, the plaintiff allegedly suffered serious injuries from the crash. The plaintiff made a claim with the defendant for $125,000 in damages suffered in the accident.

The Defendant Disputed the Insured Was Responsible for the Collision and Denied the Plaintiff’s Claim

Based on the conflicting accounts of the accident, the defendant denied that the driver it insured was legally responsible for the injuries allegedly suffered by the plaintiff in the crash and eventually denied the plaintiff’s claim. The plaintiff filed a personal injury lawsuit against the defendant to obtain the compensation requested in her initial claim, and she also requested additional damages from the defendant, alleging that the defendant unreasonably denied her claim and acted with bad faith.

Federal Court Refuses to Impose Sanctions Against Pharmacy for Destruction of Evidence in Prescription Error Lawsuit

Published on: October 4, 2016 | by Friedman Rodman Frank & Estrada, P.A.

A United States District Court recently issued a decision that denied a plaintiff’s request to impose sanctions against a defendant for destroying evidence before trial on the plaintiff’s pharmacy error claim. The plaintiff had alleged that the defendant, who had already admitted to accidentally dispensing the wrong medication to the plaintiff, destroyed the evidence in order to gain an advantage in litigation against the plaintiff. The court ultimately rejected the plaintiff’s request for additional sanctions and damages against the defendant, ruling that the defendant’s admission of the pharmacy error made the evidence sought by the plaintiff irrelevant to the issues presented in the case. The court ruled that since the plaintiff’s case was not prejudiced by the defendant’s actions, the requested sanctions would not be appropriate.

Plaintiff’s Claim Arises After Pharmacy Accidentally Dispenses the Wrong Medication

According to an article discussing the court’s recent ruling in the case, the plaintiff in the case of Burton v. Walgreen Co. was a customer of the defendant who filled a prescription for valsartan tablets but was instead given a bottle containing both his prescribed medication as well as lithium tablets. The plaintiff consumed five of the pills before noticing the error and returning the medication. The plaintiff subsequently filed a pharmacy error lawsuit against the defendant, alleging that he suffered injuries as a result of the wrong medication being dispensed by the defendant.

Medical Malpractice, Birth Injuries, and the Recent Increase in the Rate of Home Births

Published on: October 4, 2016 | by Friedman Rodman Frank & Estrada, P.A.

A national news outlet recently published an article that is the second in a multi-part series on pregnancy and birth. The article discusses both the causes and the effects of the recent increase in the rate of families who decide to plan a birth at home or in a non-hospital birth center. Data from a study cited by the article shows that the rate of planned out-of-hospital births has increased by 56% in less than a decade. The steep increase in the home-birth rate raises several questions concerning the effect on medical malpractice and birth injury claims.

The Main Reasons for the Recent Increase in Home Births

According to the author of the recent article, one of the primary reasons for the recent increase in home-birth rates is the general decline in the level of trust afforded to institutionalized medicine and corporate care, especially as it applies to the act of delivering a child.

Complaints have proliferated from patients who were subjected to unnecessary or unwanted interventions in the name of “medical necessity” while giving birth at a hospital. Many professional medical providers are quick to recommend or order complicated and sometimes dangerous procedures during a hospital birth, and mothers and families may not be afforded the opportunity to give informed consent for these procedures in the heat of the moment. It is often not until after a hospital birth is completed that the mother is able to understand the procedures that were performed, and they may not have been necessary.

State Supreme Court Affirms Verdict for Defendant in Medical Malpractice Lawsuit, While Possibly Expanding the Statute of Limitations for Future Plaintiffs

Published on: September 30, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Massachusetts Supreme Court recently released an opinion affirming a jury’s decision that a plaintiff’s claim was time-barred because she should have known malpractice was being committed and filed the lawsuit within the state’s statute of limitations. Although the high court ruling affirmed a final judgment in favor of the defendants, the court’s analysis and application of what is known as the “continuing treatment doctrine” left the door open for future medical malpractice plaintiffs to legally pursue claims over three years after the date of the alleged act of medical malpractice if the requirements for the doctrine are met. The Massachusetts Supreme Court found that the plaintiff’s claim in the case of Parr v. Rosenthal did not meet the requirements to extend the statute of limitations, and therefore it affirmed the jury’s verdict in favor of the defendant.

Complications Treating a Tumor on the Plaintiff’s Son’s Leg Results in Amputation

The plaintiff in the case of Parr v. Rosenthal is the mother of a child who lost his leg after receiving treatment from the defendant for a benign tumor on his leg. After the plaintiff’s son was diagnosed with the rare and quickly growing tumor, she sought out the defendant, who specialized in a treatment known as radio frequency ablation, or RFA, to have the tumor removed.

The plaintiff’s son was seriously burned during the procedure and eventually required two amputation surgeries on his leg because of the damage allegedly caused by the defendant. On March 9, 2009, over three years after the RFA procedure was performed, the plaintiff filed a medical malpractice and negligence lawsuit against the defendant. After a trial, the jury found that the plaintiff’s claim should have been filed within the three-year statute of limitations for medical malpractice claims, and the plaintiff should have discovered the doctor’s negligence within the limitations period.