South Florida Personal Injury Lawyers Blog

Admission of Seat Belt Non-use Evidence in Auto Accident Cases on the Rise

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

The Supreme Court of Arkansas recently released an opinion that overturned an Arkansas law that had made evidence of seat belt non-use inadmissible to prove a plaintiff’s comparative negligence in a personal injury claim. The statute had been designed to prevent defendants from avoiding responsibility for injuries resulting from their negligence because a plaintiff was not wearing a seat belt. Since seat belt use has become mandatory in 49 states and is widely accepted as an important safety precaution, laws in several states that have prevented non-use evidence at trial are being weakened or eliminated.

The Arkansas Case and the State Supreme Court’s Ruling

The case of Mendoza v. Washington Inventory Services was filed by a woman who was a back seat passenger and was injured in a rear-end accident while riding in a vehicle that was being driven by an employee of the defendant. Alleging that the driver of the vehicle negligently caused the accident, the plaintiff filed a personal injury lawsuit against the driver’s employer, seeking compensation for her injuries. As the case progressed, the defendant sought to introduce evidence that the plaintiff’s own negligence contributed to her injuries because she was not wearing a seat belt at the time of the crash. The district court rejected the defendant’s request, citing the Arkansas law that specifically prohibited the admission of such evidence for that purpose.

Judgment in Favor of County Fair Association Affirmed after Plaintiff Injured During Free Fireworks Display

Published on: April 21, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The North Dakota Supreme Court recently released an opinion that affirmed a lower court’s granting of summary judgment to the defendant, a county fair association, in a case that was filed by a woman who was injured during a fireworks display that was put on at the county fair. The court found that the defendant was protected from liability by what is known as “recreational land use immunity,” which is contained in the North Dakota state code. Based on the appellate ruling, the plaintiff will be unable to collect compensation for the injuries that she suffered due to the alleged negligence of the county fair association.

Plaintiff Is Allegedly Injured by Improperly Maintained Grandstand Equipment

The plaintiff in the case of Woody v. Pembina County Annual Fair and Exhibition Association was a woman who attended the county fair to watch a fireworks exhibition. According to the facts expressed in the appellate opinion, the plaintiff stepped on a rotten board while looking for a seat in the grandstand and fell to the ground, suffering serious injuries.

After the case was filed, the defendant moved for judgment in their favor, arguing that as a non-profit entity that was offering the fair and fireworks exhibition free of charge, they were not liable for negligence under the recreational use immunity statute. The plaintiff disagreed, claiming that the defendant was operating the event for commercial purposes, and their non-profit status was not relevant to the determination of immunity.

State Supreme Court Finds that Children Under Five Years Old Cannot Be Held Accountable for Negligence

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

The Utah Supreme Court recently released an opinion holding that as a matter of law, children under the age of five cannot be held accountable for their own negligence. The decision was handed down after the parents of a four-year-old boy appealed a district court decision that allowed a negligence case against their son to proceed. The plaintiff in the case of Nielsen v. Bell was made permanently blind in one eye after the defendant threw a toy at her while she was babysitting him. Based on the Utah Supreme Court’s decision, as well as the lower court’s ruling that dismissed a negligent supervision claim against the boy’s parents, the plaintiff will be unable to receive compensation for her injuries.

The District Court Found the Boy Could Be Held Accountable for Negligence

The plaintiff sued both the four-year-old boy and his parents for negligence after he threw a toy dolphin at her and struck her in the eye while she was babysitting him. Although she later agreed that her claim against the boy’s parents had no merit, the district court accepted her claim that the boy could be held accountable for negligence. On an interlocutory appeal by the boy’s parents, the Utah Supreme Court intervened in the case to settle the law on the minimum age at which a child can be held accountable for negligence.

The Utah Supreme Court elected to adopt a rule that puts a fixed age limit on the capability of children being liable for negligence. Although the defendants argued that the court should not allow claims against any child under the age of seven, the court decided to follow an alternative rule that barred claims against children younger than five. The court determined that children under the age of five have a limited capacity to appreciate how their actions can cause harm to themselves or others and have an inadequate internal ability to control impulses that may lead to injuries. Based on this finding, the court held as a matter of law that children under five can never be liable for negligence.

State Supreme Court Reverses $4.5 Million Award in Auto Accident Case

Published on: April 14, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Supreme Court of the State of Nevada recently released a decision in which a trial award of nearly $4.5 million was reversed, and the court ordered a new trial. The state high court found that the lower judge’s exclusion of the defendant’s low-impact accident defense, as well as her ruling to strike the defendant’s answer and enter a default award in favor of the plaintiff, was without merit. As a result of the latest opinion, the plaintiff will be required to settle the case with the defendants or prove the claim again at a second trial.

What Appeared to Be a Minor Crash Allegedly Resulted in Serious Injuries

The plaintiff in the case of Rish v. Simao was allegedly injured in an auto accident with the defendant that occurred in stop-and-go traffic. The plaintiff was able to drive his car home after the crash and refused medical treatment at the scene. However, he later alleged that he developed back and spine injuries. The defendant claimed that the plaintiff’s injuries were exaggerated and could not have been caused by the accident, based on the speed of the vehicles involved and the evidence of the relatively nonviolent impact, suggested by the photos taken at the crash scene.

Before trial, the plaintiff’s attorneys successfully argued to the court that the defense should not be permitted to argue that the crash was a low-impact collision, or that it was not sufficiently violent to cause the plaintiff’s injuries. The judge additionally ordered that the photos of the crash could not be shown to the jury. This ruling was based on the defendant’s failure to retain a biomechanical engineer expert witness who could testify that the forces involved in the crash were too insignificant to cause the injuries.

Jury Finds General Motors Not Liable for Crash Alleged from Recalled Ignition Switch

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

A New York jury recently reached a verdict in favor of the defendants in a product liability lawsuit that was filed by a couple who alleged that they were injured in a 2014 accident that was caused by a faulty ignition switch in their 2007 Saturn Sky. The jury found that the ignition switch, which has been recalled by the manufacturer, was defective and made the vehicle unreasonably dangerous. However, the jurors also determined that the faulty switch was not the cause of the accident or the resulting injuries to the plaintiffs. Based on the jury’s verdict, the plaintiffs will be unable to collect damages to compensate them for the injuries they sustained in the accident.

The Jury Finds that the Accident was Caused by Icy Roads, Not the Ignition Switch

According to a news report discussing the verdict, the jurors decided that the crash was more likely than not caused by icy road conditions on the New Orleans bridge where it occurred. An attorney for the defendant, General Motors, noted in the article that there were over 30 other accidents on the night it occurred, and he stated that the accident was caused by the driver losing control of the vehicle and had nothing to do with the ignition switch issue.

Although the plaintiffs were not successful in this particular case, General Motors has settled 1,385 other cases related to the issue for a total of about $275 million, according to the article. Furthermore, the judge who presided over the trial made a statement that the verdict should not be read into too deeply by other possible victims of the issue, and it may not dictate the outcome in other cases.

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.