person-1821413_640-300x200During the month of August, back to school activities are in full swing. As a parent, my number one priority for my children is to ensure their safety. This is why I would like to talk about bullying.

Bullying can happen anywhere, on the playground, in the classroom, on the school bus, or even online. It’s hard to know what to do when you suspect bullying behavior, however, no one knows your child better than you. Trust them and have a confidence in your instincts. If you think something isn’t right, you are probably correct.

Be active with your children, make your children feel empowered to do something if they see someone being bullied. Empower your children with the knowledge that it is ok to come forward. Children are often reluctant to say something because they feel ashamed, embarrassed or afraid.

Earlier this month, a Florida appellate court issued a written opinion in a personal injury case brought against a woman who developed lung cancer and chronic obstructive pulmonary disease (COPD). The Florida personal injury lawsuit was filed against the manufacturer of the cigarettes to which the woman claimed she became addicted, which subsequently caused her illness. The case required the appellate court to review the evidentiary rulings made by the lower court and determine if they were proper. Ultimately, the court concluded that the rulings below were not proper and necessitated that the plaintiff be granted a new trial.

AshtrayThe Facts of the Case

The plaintiff’s claim against the defendant was that she became addicted to the defendant’s cigarettes and as a result of that addiction developed lung cancer and COPD. During trial, the plaintiff called the pulmonologist who treated her over the years to establish that she was addicted to cigarettes. However, when the defendant objected to the question of whether the pulmonologist thought the plaintiff was addicted to cigarettes, the court sustained the objection, finding that he was not qualified to offer his opinion about any potential addiction.

Later in the trial, when it was the defendant’s turn to cross-examine the pulmonologist, the defense attorney asked whether, in the pulmonologist’s opinion, the plaintiff could have stopped smoking whenever she became “sufficiently motivated to do so.” The plaintiff unsuccessfully objected, and the pulmonologist was permitted to answer in the affirmative.

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With the tens of thousands of motor vehicle accidents that occur in Florida each year, it is not surprising that a significant number of these accidents involve a vehicle that was loaned to the person who caused the accident. These accidents present interesting legal issues, involving when the owner of the vehicle can be held responsible for the negligent actions of the person to whom they loaned the vehicle. The answer, under Florida law, is almost always.

Red Semi-TruckThe dangerous-instrumentality doctrine provides that the owner of a vehicle can be held liable for any injuries caused by an accident that is caused by someone to whom they loan the vehicle. This is irrespective of any negligence on the owner’s part. Thus, as long as an accident victim can show that the owner of a vehicle provided permission to the at-fault party, the owner of the vehicle can be held liable.

However, under section 324.021(9)(b)(3) of the Florida Statutes, Florida law limits an owner’s liability under the dangerous-instrumentality doctrine to $100,000 unless there is a showing that the owner was negligent in loaning the vehicle to the at-fault driver. A recent case illustrates how Florida courts interpret and apply section 324.021(9)(b)(3) to limit an owner’s liability in these situations.

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When someone is injured while engaging in an activity that they know to be dangerous, sometimes courts will prevent that person from holding other potentially negligent parties liable, based on the doctrine of assumption of the risk. In order for a court to find that a plaintiff assumed the risk of a dangerous activity, the burden is on the defendant to prove that the plaintiff knew of the dangers involved with the activity and willingly decided to proceed, notwithstanding those dangers.

Stage Door SignIn Florida, courts have limited the application of the assumption of the risk doctrine. Rather than preventing a plaintiff from proceeding with their lawsuit at the outset, Florida courts allow for the jury to factor in the plaintiff’s potential assumption of the risks involved when determining whether the plaintiff was at fault for the accident resulting in his injuries through the doctrine of comparative negligence.

The doctrine of comparative negligence allows for a jury to determine the plaintiff’s own percentage of fault in the accident giving rise to his injuries and then reduce the plaintiff’s total recovery amount by that percent. For example, if a plaintiff was determined to have sustained $5 million in damages but was also found to be 10% responsible for the accident, the plaintiff’s award would be $4.5 million. A recent case illustrates how Florida courts handle a defendant’s claim that the plaintiff assumed the risk of a certain activity.

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Earlier this month, one Florida teen was killed and four others injured when they were struck by an allegedly drunk driver as they crossed the street after exiting the school bus. According to a local news report covering the tragic accident, the collision occurred in Polk County.

Blurred TunnelEvidently, the driver of a Kia Rio was driving near Poinciana when he started to learn forward onto the steering wheel. As he did so, the car drifted off the right shoulder and struck the students, who had just recently gotten off the school bus and were walking home. After the initial collision, the driver regained awareness and then left the scene. A motorist who witnessed the accident followed the driver, who eventually crashed into an SUV before coming to a stop.

Authorities arrived on the scene a short time later and believed the man to be under the influence of alcohol. They administered an alcohol-content test, which revealed that the driver’s blood-alcohol content was nearly twice the legal limit. Sadly, one of the boys who was struck by the driver passed away in the hospital later that day. Another teen was admitted to the intensive care unit with a broken orbital bone.

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In many personal injury cases, the named defendant will try to get the case dismissed as early as possible in the process. Often, the earliest opportunity for a defendant to try for a dismissal is at the summary judgment stage. Summary judgment is a motion that a defendant can make, claiming that the plaintiff’s case as presented cannot legally result in anything other than a defense verdict.

Wet Floor SignThe legal standard at summary judgment is whether “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” In assessing the evidence during a summary judgment proceeding, the judge should consider all of the evidence in the light most favorable to the non-moving party. In most personal injury cases, it is the defendant that is moving for summary judgment, so the evidence is to be viewed in the light most favorable to the plaintiff.

If a defendant can prove that there is no issue of material fact, the judge will dismiss the plaintiff’s case. It is the defendant’s burden to prove that there is no issue of material fact, rather than the plaintiff’s burden to prove that one exists. A recent Florida slip-and-fall case illustrates how courts apply the summary judgment standard to expert witness testimony.

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Earlier this month, the Florida Supreme Court issued a written opinion in a medical malpractice case that required the court to discuss the Florida state statute that explains how judges should handle cases alleging that the defendant medical professional left a foreign object in the plaintiff’s body. The case was interesting in that, unlike many cases of its type, the plaintiff knew exactly who had left the object in his body, as well as when it should have been removed.

DoctorForeign Objects

Section 766.102(3)(b) of the Florida Statutes states that when a foreign object is discovered in a plaintiff’s body after a surgery, that fact alone is prima facie evidence of negligence in a case against the most recent surgical care provider. The reason that this law – as well as other similar laws – was passed is because a patient waking up from surgery cannot identify who left the foreign object in their body in many instances because they were under anesthesia when the event occurred.

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hospital hallwayMany find an extended stay in a medical facility to be a nerve-wracking affair. Likely not among the many fears that one considers in advance of a stay at a hospital, however, is the risk that the staff would intentionally exploit one’s vulnerability. Nevertheless, even the unexpected has the potential of becoming reality. For instance, in a recent decision, Florida’s Second District Court of Appeal tackled issues arising from an unfortunate case involving a woman who was allegedly sexually assaulted while receiving care at at a hospital’s mental health care facility.

In her complaint, the plaintiff alleged that while she was a patient at the aforementioned mental health care facility, a technician employed by the hospital sexually assaulted her in her room. She further alleged that she reported this attack to hospital officials, whom she claims intimidated her and declined to investigated the incident. She also asserted that there was a high prevalence of sexual assaults at this facility and that the hospital and its agents failed to exercise reasonable care in preventing the attack. Specifically, the plaintiff alleged that the purported assaulter had ready access to her room and acted suspiciously prior to the incident in common areas where his conduct was observable to others.

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courthouseIn response to a perceived crisis in medical insurance costs, the Florida legislature passed the Medical Malpractice Act (“MMA”), which was designed in part to deal with perceived rising medical malpractice costs in the state. See Franks v. Bowers, 116 So. 3d 1240, 1247 (Fla. 2013). In a specific effort to curb these costs, the Act included a  statutory scheme governing arbitration agreements covering potential medical malpractice claims. Although the law clearly evidences the legislature’s intent to allow medical providers to enter into arbitration agreements with patients, there continues to be ample litigation regarding how much the terms of such agreements may veer from the provisions under the MMA. See Fla. Stat. §§ 766.207, 766.212 (outlining the required contents of medical malpractice arbitration agreements). Indeed, in a recent decision, Hernandez v. Crespo, the Supreme Court of Florida ruled that a medical malpractice arbitration agreement executed by a woman who delivered a stillborn fetus after being turned away from a doctor’s appointment was void as a matter of public policy.

The key facts at issue in Crespo are as follows. The principal plaintiff in this action was 39 weeks into her pregnancy and experiencing contraction pains when she was turned away by her physician for showing up late to the appointment. The original appointment was scheduled for August 17, 2011, and she was rescheduled for an appointment on August 21, 2011. On August 20, 2011, the plaintiff delivered a stillborn fetus. A little more than a year later, on December 19, 2012, the principal plaintiff and her husband, the other plaintiff in this action, served notice on the doctor from whom she was turned away and Women’s Care Florida that they intended to initiate litigation regarding the treatment she received, which they alleged caused the stillborn birth. The plaintiffs ultimately filed suit on May 23, 2013, and about a week thereafter, the defendants moved to stay proceedings and compel arbitration pursuant to an arbitration agreement that had been executed between the parties. On August 29, 2013, the plaintiffs requested binding arbitration, pursuant to Fla. Stat. § 766.207, which the defendants rejected, arguing that they sought to enforce the signed agreement, which forestalled the need for § 766.207 arbitration. The trial court ultimately granted the motion compelling arbitration, but Florida’s Fifth District Court of Appeals reversed, finding that the arbitration agreement at issue violated public policy. The Fifth District did note, however, that its ruling was in direct conflict with a Second District decision on the issue.

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bedroom windowFlorida is among many states that apply the “impact rule” in tort litigation. Generally, the impact rule provides that “a plaintiff can recover damages for emotional distress caused by the negligence of another” only if “the emotional distress suffered . . . flow[s] from physical injuries the plaintiff sustained in an impact.” Fla. Dep’t of Corrs. v. Abril, 969 So. 2d 201, 206 (Fla. 2007). Although there are many exceptions to the application of the impact rule, this limitation on recovery for emotional damages leads to considerable chagrin among many litigants in Florida courts. For instance, in a recent decision, G4S Secure Solutions USA, Inc. v. Golzar, the Third District Court of Appeal foreclosed the recovery of emotional damages in a case involving a Peeping Tom employed as a security guard at a South Florida residential community.

The defendant in this action, G4S Secure Solutions USA, Inc. (“Wackenhut”), provides private security services throughout the United States. Around November 2008, Wackenhut hired the security officer who performed in the aforementioned peeping incident at the heart of this case. At the time of the security officer’s hiring, Wackenhut performed an investigation of the security officer’s background and uncovered a California misdemeanor conviction for disorderly conduct in 2004. Although the security officer had not disclosed the incident on his application, Wackenhut chose not to investigate the incident further. It was later revealed that the specific conduct for which the security officer was convicted under California’s disorderly conduct statute was prowling and peeking into an inhabited building.

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