South Florida Personal Injury Lawyers Blog

State Supreme Court Holds that an Employee Who is Responsible for Maintaining a Public Park is Not Immune From a Premises Liability Claim

Published on: April 7, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Supreme Court of the State of Oregon recently decided a case in which they found that the maintenance supervisor of a public park was not entitled to immunity from a premises liability lawsuit alleging that his negligence resulted in injury to the plaintiff. The plaintiff in the case of Johnson vs. Gibson is a blind woman who was injured when she fell into a hole that had been dug by the defendant in a public park in Oregon. The issue decided by the Oregon Supreme Court in Johnson vs. Gibson was not dispositive as to the plaintiff’s claim of negligence, but instead it focused on whether her case could proceed against the defendant, who was an employee of the City of Portland, which is itself immune from the lawsuit under Oregon law.

Sovereign Immunity and the Court’s Analysis of the Defendant’s Claim of Immunity

The defendant’s motion to dismiss the case against him was based on the fact that in Oregon (as is also the case in Florida), governmental agencies cannot be sued for the negligence of their employees in the same way that a private company can. Longstanding legal precedent has established that governments and municipal subdivisions are not liable in the courts for simple negligence, and every state in the country, as well as the federal government, have since put this sovereign immunity on the books as part of the state and federal codes. In many jurisdictions, it is possible for negligence victims to collect damages through an alternative process, and there are also other methods of recovery that can be used to help accident victims collect damages against a negligent government employee.

State Supreme Court Agrees Landowner is Not Responsible for Auto Accident Caused by Tenant’s Escaped Horse

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

The Supreme Court of the state of Vermont recently released a decision affirming a lower court’s ruling that the owner of a piece of property would not be held legally responsible for injuries that were caused in an auto accident after a horse escaped from the owner’s property and was hit by a driver. The plaintiff in the case of Deveneau v. Weilt was injured one night after he was unable to avoid a collision with the animal on a road adjacent to the property from which the horse had escaped. The plaintiff filed a negligence lawsuit against both the owner of the property and the owner of the horse, who was a tenant of the property owner, and sought damages to compensate him for his injuries and other costs that were incurred in the accident.The Horse Owner’s Agreement with the Property Owner to Pasture the Horses

The agreement between the property owner and the tenant concerning the pasturing of horses on the land was an important factor in the court’s decision in this case. According to the Court’s written ruling, the property owner agreed to allow the tenant to pasture two horses on the rented land “on the condition that [the tenant] take responsibility for all care of the horses and maintain a fence to keep them enclosed.” The tenant constructed a temporary electric fence to keep the horses enclosed, which was electrified through solar power, but the owner had no knowledge of the design or construction of the fence. Although the functionality of the fence was not a controlling factor in the court’s decision regarding the landowner’s liability, it had not been determined if the fence was electrified at the time of the collision.

Families of Athletes Diagnosed with Chronic Traumatic Encephalopathy May Have Claim against Sports League

Published on: March 25, 2016 | by Friedman Rodman Frank & Estrada, P.A.

By this time, most people have heard at least something about the tragic degenerative brain disease chronic traumatic encephalopathy, otherwise known as CTE. This brain injury has been making headlines across the United States as it was recently discovered that many professional athletes have been suffering with this deadly disease.In the past, CTE was most frequently associated with professional boxers. In fact, it was often called “punch-drunk” syndrome. It is a type of brain damage which is caused by repeated trauma to the head. It is considered a degenerative disease because it persists and worsens over time, and eventually leads the brain to be susceptible to atrophy.

Sadly, the symptoms of CTE are particularly devastating. The most reported symptoms include impulse control issues, memory and cognition impairments, confusion, early-onset dementia, and other mental health problems. As the disease progresses it can lead to behavioral issues including: aggression, severe depression, and even suicidal tendencies. Until very recently, the disease could only be diagnosed after the individual has passed away. There has been some research that revealed signs of CTE just prior to a football player’s death; however, it is still generally considered to be a condition that can only be diagnosed after death.

What Level of Care Gives Rise to a Medical Malpractice Case in Florida?

Published on: March 22, 2016 | by Friedman Rodman Frank & Estrada, P.A.

Medical malpractice is a term almost everyone is familiar with. However, what exactly constitutes medical malpractice is often misunderstood by the general public. Essentially, a medical malpractice claim asserts that a doctor’s negligent conduct resulted in some harm to his or her patient. What exactly constitutes “negligent conduct” is often where much of the litigation lies in medical malpractice cases.In order to prove a case of medical negligence against a Florida doctor, the plaintiff must prove that the care they were provided by the defendant doctor fell below the generally accepted standard in the industry. This standard considers the amount of training and experience a doctor has, as well as the geographical region a doctor practices in. For example, a doctor in metropolitan Miami will not likely be able to claim ignorance of new medical technology or literature, whereas a doctor in rural Wyoming may be able to do so.

If a plaintiff is successful in a medical malpractice case, the case will then be assessed for damages. This may include amounts for past unpaid medical bills, any future medical expenses due to the accident, lost wages, a decrease in earning capacity, as well as any pain and suffering the victim sustained as a result of the physician’s negligent care.

Personal Injury Appeal Dismissed Based on Plaintiff’s Failure to Preserve Error

Published on: March 18, 2016 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, a federal circuit court of appeals issued a written opinion that makes clear the importance of having attentive and knowledgeable attorneys involved in a personal injury case. In the case of Stults v. International Flavors, the appellate court dismissed the plaintiff’s claims because they failed to make a timely objection at trial, thus preserving the error for appeal.

A Brief History of the Facts

The facts of the case are a bit unusual. The plaintiff consumed between one and three bags of microwavable popcorn per day for about 20 years. At some point, the plaintiff was diagnosed with a lung disease called bronchiolitis obliterans, which is an inflammation and scarring along the airways of the lung. It caused the plaintiff to cough excessively and have a difficult time breathing. The plaintiff filed a lawsuit against the manufacturer claiming that the manufacturer of microwavable popcorn was liable for his lung disease because the chemical used to create a buttery flavor in the product was shown to cause bronchiolitis obliterans.

At trial, there was a “battle of the experts,” meaning that each side presented expert testimony as to why the plaintiff developed his lung disease. The defense experts’ position was that it was caused by an auto-immune disorder that had nothing to do with their product. The plaintiff’s expert, on the other hand, claimed that the disease was caused by his exposure to the chemical that was found in the defendant’s popcorn.

Defense Verdict Reversed in Road Rage Case Based on Withheld Information

Published on: March 15, 2016 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, a West Virginia appellate court issued an opinion in a case that arose after a hated exchange between two motorists caused a truck driver to crash. In the case, Phillips v. Stear, the lower court entered a verdict in favor of the defense. However, on appeal that verdict was reversed based on the defendant’s failure to disclose information about his driving history.

A Road Rage Situation Culminates in a Crash

The plaintiff was driving on a West Virginia highway when another motorist pulled in front of him, gave him the “finger,” and then slammed on his brakes. In an attempt to avoid what he thought would be a certain collision, the truck driver also slammed on his brakes. However, this caused him to lose control of the truck and an accident ensued.

The other motorist sped off. However, a witness to the accident followed the motorist and called police, giving authorities the car’s license plate information. Eventually police were able to locate the driver, who was cited for improper lane change. The plaintiff filed a lawsuit against the other driver.

Florida Accident Victim’s Bad-Faith Claim Against Insurance Company Results in $1 Million Verdict

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

Insurance companies can be difficult to deal with. Whether it is an aggressive representative trying to get an accident victim to settle a case for a low-ball amount or a claims adjuster denying a seemingly valid request for compensation, insurance companies are not known for their customer service. In fact, in many cases people have to turn to the courts to enforce their own insurance policy against the insurance company. That is exactly what happened in a recent case in front of the Florida Supreme Court.In the case, Fridman v. Safeco Insurance Company of Illinois, the plaintiff was hit by an underinsured motorist and turned to his own insurance company, Safeco, for help. However, Safeco denied the plaintiff’s claim. After continuing to try and get a response for several years, the plaintiff finally filed a lawsuit against Safeco, compelling them to deal with the claim. The lawsuit was filed pursuant to a statute that allowed for recovery in excess of the policy limit.

Shortly after the lawsuit was filed, Safeco sent the plaintiff a check for $50,000 in an attempt to pay out the claim. However, at this point the plaintiff rejected the check, and opted to have a jury determine how much he was entitled to. The case proceeded to trial, where a jury awarded the plaintiff $1 million. Safeco appealed to the intermediate appellate court, which reversed the lower court’s opinion, and held that the $50,000 check given to the plaintiff was, in effect, a settlement that prevented the case from proceeding toward trial. The plaintiff then appealed to the Florida Supreme Court.

Johnson & Johnson to Pay $72 Million after Product Liability Lawsuit

Published on: March 8, 2016 | by Friedman Rodman Frank & Estrada, P.A.

Earlier last month, a jury awarded the family of a woman who died from ovarian cancer roughly $72 million against the defendant, health-care manufacturing giant, Johnson & Johnson. According to one article following the case, $10 million of the verdict was for compensatory damages and $62 million were for punitive damages.

The Allegations

The plaintiffs in the case alleged that Johnson & Johnson not only sold a dangerous product, but also that the company continued to do so even after it learned the of dangers associated with the product. The lawsuit focused on the deceased’s use of Johnson & Johnson’s “Shower to Shower” powder, which contained talcum powder. The product was marketed for decades as a feminine hygiene product, until the Food and Drug Administration advised against the use of talc-based products around the genitals.

Evidence at trial suggested that the woman had used the product for decades, and was never warned of the possibility that continued use of the product increased the likelihood she would develop cancer. There was also evidence presented suggesting that Johnson & Johnson officials knew that there were dangers associated with the use of their product, but ignored them and continued to market the product as a safe feminine-hygiene product.

Tampa Court Declines to Dismiss Class Action Lawsuit Filed Over Car Accident Victim PIP Payments

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

In AA Suncoast Chiropractic Clinic, PA v. Progressive America Ins. Co., a group of Florida chiropractic clinics filed a class action lawsuit against an insurance company, claiming the insurer breached its contract when it failed to reimburse the medical providers for the care each provided following various motor vehicle collisions.

Under Florida law, motorists are required to carry no-fault personal injury protection (PIP) coverage of $10,000 in order to pay for emergency medical treatment. According to the group of chiropractic clinics, the insurer reclassified the treatment each insured person at issue received as non-emergency care after the insureds were treated. As a result, the insurance company allegedly opted to reduce the PIP policy limits to $2,500, pursuant to Section 627.736 of the Florida Statutes. After doing so, the insurer denied full payment to the clinics. In their complaint, the group of clinics sought both declaratory and injunctive relief.

Florida Appellate Court Holds Injured Employee’s Motion for Sanctions Was Not Premature

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

In Soca v. Advanced Auto Parts, an auto parts store employee was apparently injured during a robbery at work. Following the incident, the man filed three petitions for workers’ compensation benefits. Soon afterward, the man’s employer provided him with the benefits he requested, and the worker withdrew his petitions.

Next, the employer sought to tax the worker for costs under Section 440.34(3) of the Florida Statutes. Under the law, the nonprevailing party in a proceeding before a Judge of Compensation Claims (“JCC”) is required to pay the “reasonable costs” associated with the proceedings. According to the employer, the company was clearly the prevailing party in the workers’ compensation proceedings. The employee responded by filing a motion for sanctions against his employer pursuant to Section 440.32. In his motion, the worker argued the costs sought by his employer could not have been incurred in the company’s defense against his petition for workers’ compensation benefits.