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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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parking lotIn an effort to avoid potential litigation, many businesses enact procedures to ensure customer safety. Notwithstanding the ubiquity of such safety procedures, employees do not always follow the rules, which unfortunately leads to injuries to patrons.  When non-compliance with self-imposed safety protocols causes an injury, many people naturally question whether the failure to comply with these procedures amounts to negligence. However, as Florida’s Second District Court of Appeal recently discussed in Wal-Mart Stores, Inc. v. Wittke, a failure to comply with internal practices does not necessarily establish negligence.

Wittke revolves around a December 2009 slip-and-fall accident at a Wal-Mart in Bradenton, Florida. The plaintiff in this action was entering the Wal-Mart on a rainy day when she fell and sustained injuries. Surveillance footage showed that there were two large fans and a yellow warning cone in the area where the fall occurred. Although these measures were taken, the plaintiff asserted that Wal-Mart employees failed to follow certain corporate protocols related to wet floors and were otherwise negligent. The case ultimately proceeded to a trial, after which a jury returned a verdict in favor of Wal-Mart. The plaintiff moved for a new trial, and the trial court judge granted the motion. In this order granting a new trial, the judge noted that “the evidence . . . clearly demonstrated that [the plaintiff’s] injuries were the result of [Wal-Mart’s] failure to follow its own safety policies and procedures.” Wal-Mart appealed the order granting a new trial, and the Second District Court of Appeal agreed that a new trial was not warranted and reversed the trial court’s ruling.

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car accidentUnder Florida law, it is presumed in rear-end collision cases that the driver of the rear vehicle was negligent. Although this presumption can be a useful tool for litigants, the presumption is not absolute, and those seeking to make recourse to this presumption must be able to show that no possible negligence on their part contributed to the collision. Questions regarding the application of this rear-end collision presumption were at the core of a recent decision from the Fourth District Court of Appeal, Padilla v. Schwartz, involving a rear-end collision on the Florida Turnpike.

As stated above, the accident at issue occurred along a stretch of the Florida Turnpike where construction was taking place. The plaintiff was driving on the turnpike when he struck the back of a vehicle being operated by the defendant. At his deposition, the plaintiff testified that he was driving within the speed limit and that he did not observe any vehicles near him until immediately before the collision. The plaintiff further testified that only shortly before the accident did he see the defendant’s vehicle, which he asserted appeared suddenly before him, and that although he applied his brakes, it was not enough to avoid striking the rear of the defendant’s vehicle. Following the accident, the plaintiff brought a negligence lawsuit against the defendant. At the conclusion of discovery, the defendant moved for summary judgment, asserting that he was entitled to the rear-end collision presumption and that the plaintiff had failed to adduce evidence to rebut the presumption that his negligence, rather than the defendant’s, caused the accident. The trial court granted the motion for summary judgment, and the plaintiff appealed.

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therapistIn a long-awaited decision, Chirillo v. Granicz, the Supreme Court of Florida provided much-needed clarity on the thorny question of the liability that may extend to a psychotherapist for his or her patient’s suicide. The decision resolves conflicting rulings from two of Florida’s Courts of Appeal and provides coherent guidance to litigants wondering whether the conduct of a treating psychotherapist is actionable.

Granicz was brought by the widower of a patient who had received mental health care treatment from a primary care physician for about three years prior to her suicide. The physician began providing treatment to the patient in 2005, and in September of that year, he switched the patient’s antidepressant medication from Prozac to Effexor. In October 2008, the patient contacted the physician’s office and told a medical assistant she had ceased taking the Effexor because she believed it was causing various deleterious side effects, including difficulty sleeping and digestive problems. After reading notes on this conversation taken by the medical assistant, the physician called the patient, told her that he was changing her prescription to Lexapro, and referred her to a gastroenterologist. The physician told the plaintiff that she could obtain samples of Lexapro from the office, but he did not schedule an appointment to meet directly with the plaintiff. Some days thereafter, the patient went to the office to obtain the samples.

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