South Florida Personal Injury Lawyers Blog

Slip and Fall at a Florida Gas Station

Published on: May 15, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a couple appealed a final summary judgment in a travel center’s favor. They had also wanted to amend the complaint to include punitive damages, but were denied. The case arose when a man slipped on diesel fuel that had spilled at a service station. He sued on the grounds of negligent maintenance. The defendant argued that its employees had followed all the appropriate clean-up procedures in addition to the spill being open and obvious. The trial court agreed with the defense and granted summary judgment in its favor.

In slip and fall cases, the burden to prove there are no material issues of fact is more difficult than some other personal injury cases. A court may not grant summary judgment unless the defendant establishes that the absence of negligence was unequivocal or that it was the injury’s exclusive proximate cause.

The man who fell was considered a business invitee. In Florida, a business invitee is owed (1) a duty to employ reasonable care in ensuring the property’s conditions have been safely maintained and (2) duty to warn about dangers an owner has or should have had knowledge of, that are not known to the invitee. The man was a seasoned truck driver, plus he saw the spill right away when he came to the station and was aware of it because he had seen the trash can aisle blockage and had moved through the spill as he walked to the station store. Continue Reading ›

Releases for Dangerous Activities in Florida

Published on: May 13, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a man whose wife drowned while scuba diving in 2010 appealed the court’s granting of summary judgment in favor of the recreational diving operation Key Dives. The wife had drowned at the start of an advanced open water dive to an underwater wreck.

It was Key Dives’ practice to require customers to sign a release before a day’s dive. The man and his wife signed these releases in favor of Key Dives on previous dives. On the morning of the fatal dive, the couple was late in arriving. They did not sign the release for that day’s dive. It was a dive for which dive industry standards dictated a particular type of release was to be used.

On the morning of the dive, the woman was worried about diving for unknown reasons. Ocean swells were between 4-5 feet. The husband went in first and his wife followed. After going down about 10 feet, she signaled she wanted to come back to the surface. She tried to board the boat but lost her grip and drifted off. An alarm was sounded, but she was found drowned.

“Stand Your Ground” and Personal Injury Cases

Published on: May 8, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a roofing company defendant and Jose Alvarez asked the appellate court to review an order denying a motion to dismiss a civil action brought under the provisions of the Florida Stand Your Ground Law. The trial court denied the motion without holding an evidentiary hearing to decide whether Alvarez was right to employ force against the plaintiff under Stand Your Ground.

The case arose when Alvarez hit the plaintiff, a former employee of the roofing company, with a baseball bat at the roofing company. Alvarez claimed he was immune from criminal prosecution because he had used justifiable force against a threat that the plaintiff was about to use unlawful force. He filed a motion to dismiss under Stand Your Ground. The criminal court granted the motion and dismissed the charges.

The plaintiff sued Alvarez for battery, assault, negligence, and intentional infliction of emotional distress while the criminal case was pending. He also sued his employer, claiming vicarious liability for negligence and for negligently retaining a dangerous employee. He also asked for punitive damages.

Birth Injuries in Florida

Published on: May 6, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case the parents of a child with birth defects sued an ob-gyn and the woman’s health clinic where she worked for medical malpractice. The child had severe birth defects that the parents believed were caused by a drug the woman had stared taking again in order to treat a chronic disease.

The woman claimed that the clinic knew she was planning to have a second child. An over-the-counter pregnancy test yielded a positive result. Two visits a few days later the clinic told her the pregnancy was nonviable.

The clinic recommended she have a dilation and curettage. She refused. After that she started taking a drug again believing the fetus would be expelled spontaneously. She claimed later she was not aware of the potential adverse effects of taking the drug should the baby be born. The baby was born.

Employer Liability for Rental Car Accident in Florida

Published on: May 2, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case the Florida plaintiffs were injured in a car accident involving a rental car. The rental car was paid for by the employer Bell Partners and authorized for its employee to drive for business purposes. However, at the time of the accident it was driven by the employee’s husband.

The plaintiffs sued the employer under the dangerous instrumentality doctrine. It claimed that the employer was vicariously liable for authorizing and paying for the driver’s wife to rent the vehicle. The employer denied liability. It argued that it had not agreed to the employee’s husband driving the rental car and that its policy prohibited unauthorized drivers or personal use of company rental cars.

Both parties filed cross-motions for summary judgment. The driver’s wife frequently traveled for her employer who owned several senior living communities in multiple states.

Negligence Per Se in Florida Escalator Injury Case

Published on: April 28, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a 2010 case, a woman appealed from a judgment entered after directed verdict in a personal injury case. The woman had sued an elevator corporation and Miami Dade County after she fell on an escalator at the airport. She claimed the escalator had stopped abruptly. She had fallen. The escalator had been reported as not working just hours before her fall.

There was no record of a technician checking the escalator and also no record of repair work performed on the escalator. When the case went to trial, the court excluded evidence that there had been previous problems with the escalator and also denied the plaintiff’s request that the jury be instructed on negligence per se. The defense attorney was permitted to argue there was no evidence of prior problems over the plaintiff’s objection.

The plaintiff’s doctor testified that the plaintiff would require back surgery in the future, but the trial court wouldn’t allow the doctor to give an opinion about future surgery because he was not a surgeon.

Can a Florida Co-Owner of a Car Avoid Vicarious Liability for an Accident?

Published on: April 24, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, the Florida Supreme Court answered a certified question on the question of whether a co-owner of a car could avoid vicarious liability by claiming he didn’t intend to be owner of the vehicle and had relinquished control to a co-owner. Robert Christensen paid for a Chrysler PT Cruiser in 2003, putting the title in both his wife’s name and his own name. Both signed the application under penalty of perjury to have the title paperwork list them as co-owners. They were in the process of divorcing.

The husband didn’t receive the certificate of title because it went to his wife. He did not have a key or use the vehicle, nor did he live with his wife, though title was in his name. About 22 months later, the wife negligently hit and killed a man while driving the car. The title was still in the name of both husband and wife as co-owners. The car was operated with the husband’s consent.

After the accident, the decedent’s wife Mary Jo Bowen sued for wrongful death against both Christensen and his wife. The plaintiff claimed that Christensen was vicariously liable for his wife’s negligent operation of the vehicle under the dangerous instrumentality doctrine. Christensen argued that he wasn’t vicariously liable. He later testified he had bought the car as a gift for his wife and wasn’t involved with the car after purchase.

Burden of Proof and Nursing Home Agreements

Published on: April 21, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a woman appealed an order that granted a retirement home’s motion to compel arbitration. These motions are fairly common in nursing home abuse or nursing home negligence cases. Often a nursing home requires incoming residents to sign an arbitration agreement before being admitted and this agreement requires the resident to submit any dispute to a particular arbitrator and set of arbitration rules. Issues arise when the arbitration agreement requires a resident to subscribe to rules that impact their ability to recover for serious losses under Florida law.

In Florida, an arbitration agreement can be found contrary to public policy where the agreement substantially limits remedies set forth under the Nursing Home Residents Act (NHRA) or Assisted Living Facilities Act (ALFA). Under NHRA, any claim alleging a violation of rights or negligence causing injury or death to someone living in a nursing home must be proven by a preponderance of the evidence. A claimant must show (1) nursing home or other defendant’s duty to the resident, (2) breach of duty, (3) the breach is a legal cause of loss or injury or other damage to the resident, (4) actual loss, injury, death or damage due to the breach.

In this case, the plaintiff had signed an arbitration agreement that required arbitration by the American Health Lawyers Association under its alternative dispute resolution rules. She signed it in order to be admitted to the residential facility.

Florida Court Takes on Bahamian Food Poisoning Case – Howard v. Kerzner

Published on: April 17, 2014 | by Friedman Rodman Frank & Estrada, P.A.

As our society becomes increasingly mobile, it’s likely that courts will be tasked more frequently to resolve legal disputes among parties in different states. The decision on which state’s laws apply to a given case is an important one. As the U.S. District Court for the Southern District of Florida explains in Howard v. Kerzner, it can even make or break the case.

Ms. Howard, who lives in North Carolina, sued Kerzner International Limited, alleging that she suffered food poisoning while dining at the Mesa Grill during her stay at Atlantis Resort on Paradise Island in the Bahamas. Specifically, she claimed that the restaurant served her fish containing ciguatoxins, which the court said are natural toxins found in tropical fish and can cause food poisoning-like symptoms when consumed. Kerzner, a Bahamas-based company, owns and operates the resort and Kerzner asserted that its employees caught and prepared the fish. She alleged claims for strict products liability, and breach of express and implied warranties.

The District Court began by explaining that Bahamian law applies to the case, even though it was proceeding in Florida. “Unless another state has a more significant relationship, the local law of the state where the injury occurred determines the rights and liabilities of the parties.” The Court wrote, quoting the State Supreme Court’s 1980 decision in Bishop v. Florida Specialty Paint Company.

Discovery of Adverse Medical Incidents in Florida

Published on: April 14, 2014 | by Friedman Rodman Frank & Estrada, P.A.

For years, public policy in Florida allowed doctors unfettered authority. In 2004, voters approved Amendment 7, which created a constitutional right for patients to know about a health care facility or provider’s adverse medical incidents, including medical malpractice. This right is important, but it is not total, and it remains important for plaintiffs to tailor their discovery requests appropriately.

In a 2013 case a medical center sought review of an order that it produce specific documents in a medical malpractice lawsuit. The case arose when the plaintiff sued the medical center and others in association with her surgery. During the discovery phase, the plaintiff requested all documents related to adverse medical incidents. She cited to Amendment 7.

The medical center asked the court to issue a protective order. It cited various privileges. The court ordered the medical center to produce any documents that referenced “adverse medical incident” regardless of how the document was labeled. It ignored the potential for violating attorney-client and other privileges. It denied the medical center’s request for a protective order. The defendant filed privilege logs in response.