In a recent opinion, an appellate court addressed the validity of exculpatory clauses in Florida personal injury lawsuits. The court certified a question to the Florida Supreme Court regarding the extent to which exculpatory clauses are enforceable.

The issue stems from a contract dispute between a travel agency and a Florida corporation that specializes in website development. The two parties executed a service agreement that included a provision stating that the website developer would not be liable for any damages, and waived all claims against them. The lower court noted that the exculpatory clause rendered the entire service agreement illusory. The court explained that the contract was both illusory and amounted to an “unenforceable agreement to agree.” The case was appealed to the Florida Court of Appeals.

The Florida Court of Appeals explained that Florida contracts require several elements to be valid. A valid contract includes acceptance, consideration, and sufficient specification of essential terms. However, unsure how to rule on this specific issue, the court certified a question regarding the validity of exculpatory clauses in Florida contracts to the state’s high court.

Recently a state appellate court issued an opinion in a Florida personal injury case requiring the court to decide whether an accident victim could still recover for their injuries when they were under the influence of drugs or alcohol when the accident occurred. According to the court’s opinion, the plaintiff appealed a trial court decision that found him unable to recover any damages after being injured in a motor vehicle accident because he was under the influence of an alcoholic beverage at the time. As required by law, the trial jury apportioned liability amongst the plaintiff and defendant. They assigned 55 percent negligence to the plaintiff and 45 percent negligence to the defendant.

Generally, Florida is considered a “pure comparative” negligence state. In pure comparative negligence states, plaintiffs can recover compensation from another party, unless the plaintiff is the only one to blame for the accident. In theory, this means that a plaintiff can recover compensation for their injuries even if they are 99 percent at fault. However, their proportionate level of fault reduces the total damage award. The “drug and alcohol” defense, contained in Florida Statutes section 768.36, is an exception to this general rule.

In such cases, the court can preclude the plaintiff’s recovery if the defendant can establish that the plaintiff was more than 50 percent at fault for the accident and their injury occurred when they were under the influence of drugs or alcohol or their blood or breath alcohol level was .08 or higher. Most importantly, the jury must also find that the influence of the alcoholic beverage or drug caused the plaintiff to be more than 50 percent at fault for their injuries. Each of these requirements must be met for the defense to apply.

In April of 2019, a state appellate court issued a written opinion in a Florida personal injury case discussing whether the plaintiffs were properly allowed to amend their complaint to add a claim for punitive damages against the defendant. Ultimately, the court concluded that the trial court followed the required procedures when granting the plaintiffs leave to amend, and that the appellate court did not have jurisdiction to reconsider the lower court’s substantive legal decision once it determined the procedures were followed.

According to the court’s opinion, the plaintiffs were the parents of a young girl who was seriously injured when she fell from a ride called “Psycho Swing.” The safety harness was not installed on the ride at the time of the girl’s injury. The plaintiffs filed a personal injury claim against several parties, including the defendant, which was the company that owned the ride and leased it to the company that was operating it when the plaintiff was injured. The plaintiffs claimed that the ride was missing crucial safety equipment and was being operated without the instruction manual.

Initially, the plaintiff sought punitive damages from all other defendants but not the defendant involved in this appeal. However, the plaintiffs soon after requested a second hearing, seeking leave to amend their complaint to add a claim for punitive damages against this defendant. The court considered evidence from the first hearing, as well as deposition testimony from the creator of the ride who stated, among other things, that providing the swing to another company without the safety harness was “unconscionably something that you shouldn’t do.” After hearing all the evidence, the court determined that there was a reasonable basis for the plaintiffs’ claim for punitive damages. The defendant filed an immediate appeal.

Among the various types of damages that may be available through a Florida personal injury are loss of consortium damages. These damages are unique in that they are not designed to compensate the victim for any of the injuries they sustained, but instead focus on providing the spouse of the injury victim compensation for loss of the “sexual relationship, affection, solace, comfort, companionship, conjugal life, fellowship, society, and assistance necessary to a successful marriage.”

Under Florida personal injury law, a loss of consortium damage claim is filed by a “deprived spouse,” based on injuries that the “impaired spouse” suffered. To successfully file a claim for loss of consortium, a deprived spouse must be able to establish:

  • that a valid marriage existed between the deprived spouse and impaired spouse at the time of the injury;

Florida law generally allows for an accident victim to recover for their injuries, even if they are partially at fault for causing the accident in which the injuries resulted. In Florida, this concept is known as comparative negligence. Being a pure comparative negligence jurisdiction, Florida accident victims who share responsibility for causing an accident will not be prevented from recovering for their injuries. Instead, accident victims will have their total damages award reduced by their own percentage of fault.

For example, if a party is injured in an accident and sustains $500,000 in damages, and the jury determines that the plaintiff is 20% responsible and the defendant 20% responsible, the plaintiff’s ultimate recovery amount would be $400,000 ($500,000 – (.20 x $500,000)).

If, however, an accident victim is under the influence of drugs or alcohol at the time of the collision, Florida’s drug and alcohol exception may apply. Florida Statutes Section 768.36 contains the drug and alcohol exception, which states a plaintiff is prevented from recovering for their injuries if the defendant can show that:

Recently, a state appellate court issued an opinion in a Florida car accident case discussing whether the trial court was correct in determining that the defendant’s negligence was the sole cause of the accident resulting in the plaintiff’s injuries. Ultimately, the court concluded that the lower court was correct in finding that the defendant was negligent; however, the court went on to explain that the jury should have been allowed to consider whether the plaintiff’s actions contributed to the accident.

Comparative Fault in Florida Personal Injury Law

While the negligence of one party is the sole cause of some Florida car accidents, it is not uncommon for a plaintiff to bear some responsibility for causing an accident. Under Florida personal injury law, a plaintiff is not precluded from recovering for their injuries merely because they are partially at fault. Instead, the law allows a plaintiff to recover a reduced amount, based on their own percentage of fault.

The Facts of the Case

According to the court’s opinion, the plaintiff’s vehicle was struck from behind by the defendant. It was agreed that the plaintiff had planned to make a U-turn, but realized that it was not legal to do so at that particular intersection. The plaintiff claimed that she began to veer into the center median, but never applied the brakes and maintained a speed of about 30 miles per hour.

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When someone is injured due to the negligent act of a healthcare provider, they may be able to pursue a claim for compensation against the responsible parties through a Florida medical malpractice lawsuit. However, before a case can be filed, specific procedural requirements must be met.

Under Florida’s Medical Malpractice Act, a medical malpractice plaintiff must conduct a reasonable investigation to determine that their claim is being brought in good faith. Under Florida Statutes section 766.104, good faith can be shown by obtaining a written opinion from an expert stating that, in the expert’s opinion, the plaintiff’s case has merit. An affidavit must be completed for each defendant named in the plaintiff’s case.

A separate section of the Medical Malpractice Act describes in detail the necessary qualifications for an expert. Under section 766.102, the most basic requirements for any party to be qualified as a medical expert are that the witness is a healthcare provider who holds an active and valid license. The witness must also conduct a complete review of the relevant medical records before being qualified to testify.

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Last month, a state appellate court issued an opinion in a Florida wrongful death case discussing the permissible scope of a liability release waiver and whether such a waiver can prevent a plaintiff from pursuing a claim of gross negligence against a defendant. Ultimately, the court concluded that the plaintiff’s case should proceed because the waiver signed by the plaintiff did not include the waiver of claims based on the defendant’s gross negligence.

The Facts of the Case

According to the court’s opinion, the plaintiff was killed when she was run over by a tow-truck on the Daytona International Speedway. Apparently, the plaintiff was standing in a restricted-access area when two employees of the raceway instructed the tow-truck driver to back the truck into the restricted area. As the truck was backing up, it ran over the plaintiff.

Before the plaintiff entered the raceway, she signed a release and waiver of liability. The waiver stated that the plaintiff agreed to “release, waive and discharge” the defendant “for any and all loss or damage” resulting in injury or death. The agreement stated that it applied to “all acts of negligence.”

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According to recent statistics by the Florida Highway Safety and Motor Vehicles, distracted driving can be visual, manual, or cognitive. Examples of distracted driving include texting, eating, checking your GPS, unsecured pets, adjusting the radio, tending to kids in the back seat, and even daydreaming. Government statistics show that there were 50,190 distracted driving crashes in Florida in 2017, 1,746 of which occurred in Palm Beach County.

Distracted driving can be the basis for a legal claim for damages against the distracted driver. Most claims arising out of Florida car crashes are the result of negligent conduct. To establish a Florida negligence claim, a plaintiff must prove: the defendant owed a duty of care to the plaintiff to conform to a certain standard of conduct; the defendant breached that duty; a causal connection existed between the defendant’s conduct and the plaintiff’s injuries.

Florida drivers are required to drive carefully and prudently to avoid endangering other people and property. This includes being attentive to the road at all times in order to be prepared for an emergency. In a motor vehicle claim, the plaintiff must show that the accident was a foreseeable result of the defendant’s actions. For example, causing a crash because a driver was distracted is a foreseeable result of failing to maintain attention to the road while driving.

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In the mid-1990s, states across the nation began to see an uptick in the number of roadside accidents. Many of these accidents involved those who operated emergency vehicles on the road’s edge, such as police officers, firefighters, emergency medical technicians, and tow truck drivers.

It was not until 2002 that Florida passed its first iteration of what has come to be known as the “Move Over” law. Since then, the law has undergone several amendments, and in its current form the law covers “emergency vehicles” and “wreckers.” Specifically, the law requires that all motorists traveling in the same direction of a stopped emergency vehicle “vacate the lane closest to the emergency vehicle,” as long as the road has two or more lanes. If an emergency vehicle or wrecker is stopped on a single-lane highway then passing motorists must slow down to a speed of 20 miles per hour under the posted speed limit or, if the speed limit is 25 miles per hour or less, to a speed of five miles per hour.

A violation of Florida’s move over law can result in a traffic citation. However, the import of Florida’s move over law does not stop there. It also makes recovery easier for those who have been injured after a motorist failed to comply with the move over law. If you have questions of this nature, reach out to a dedicated Florida motor vehicle accident attorney.

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