by

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.

Continue reading

by

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.

Continue reading

by

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.”

Continue reading

by

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.

Continue reading

by

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.

Continue reading

by

In a recent Florida wrongful death case, the Florida Supreme Court reversed an intermediate appellate court’s decision that placed a limit on the amount of damages that a person could obtain through a wrongful death lawsuit.

The Facts

The specific facts of the case are less important than its holding. However, the case involved a wrongful death lawsuit brought by a plaintiff against a tobacco company. The plaintiff claimed that the tobacco company was responsible for her mother’s early death at the age of fifty-eight. The plaintiff was forty-two at the time of her mother’s death. There was extensive testimony regarding the closeness of the plaintiff’s relationship with her mother.

The case proceeded to trial, and the jury awarded the plaintiff $4.5 million in damages for the loss of her mother. The defendant tobacco company filed a motion with the court, asking it to reduce the damages amount, but the motion was denied. The tobacco company appealed.

Continue reading

by

As a general matter, Florida landowners have a duty to ensure the area is safe for those whom they invite onto their property. In the event that a landowner fails to take the necessary precautions to ensure their property is safe, the landowner could be liable to any visitor for injuries caused by that hazard through a Florida premises liability lawsuit.

In Florida, landowners owe two distinct duties to their visitors. First, to “exercise ordinary care in keeping the premises reasonably safe.” Second, landowners also have a duty to warn guests of known hazards that may not be immediately recognizable. Simply stated, Florida landowners have a duty to keep their property reasonably safe, and when a hazard does exist, they must warn visitors of the hazard’s existence.

With respect to warning visitors of known hazards, not all hazards are viewed as equal under the law. Courts have routinely held that landowners do not have a duty to warn their visitors about “open and obvious” hazards. Notably, the open and obvious doctrine does not protect a landowner from a failure to exercise ordinary care in keeping a safe area. Thus, the doctrine is only applied in cases where a plaintiff claims the landowner failed to warn them of a known hazard. A recent case illustrates how courts apply the open and obvious doctrine.

Continue reading

by

In a recent opinion, a state appellate court discussed the notice requirements of a Florida medical malpractice lawsuit. That presented a situation in which a plaintiff filed a lawsuit against a healthcare provider raising claims that the plaintiff believed was not based on a theory of medical malpractice. Thus, the plaintiff did not take the extra steps to comply with the state’s notice requirements for medical malpractice lawsuits.

The court had to decide if the case should be dismissed based on the plaintiff’s failure to comply with the additional notice requirements. Ultimately, the court concluded that the plaintiff did not need to comply with the additional requirements because the plaintiff’s lawsuit was brought under a traditional theory of negligence and not considered a medical malpractice case.

Florida Statutes section 766.106 – Florida’s Medical Malpractice Notice Provision

Florida lawmakers have made it so all Florida medical malpractice plaintiffs must comply with additional requirements in order for their case to be properly heard. These additional requirements can be burdensome, however, if they are not followed a plaintiff’s case may be dismissed without the merits of the case ever being heard.

Continue reading

by

Some parties try to get away with lying or concealing information relevant to a legal claim. However, the consequences of failing to provide honest and complete testimony can be dire. In a recent case before a Florida appeals court, the court dismissed a personal injury claim after the plaintiff concealed a history of low back injury.

In that case, the plaintiff was riding in a car owned by his girlfriend when they were hit by a truck that fled the scene. The plaintiff alleged that the girlfriend was negligent and that he suffered permanent injuries to his neck and lower back as a result.

The parties engaged in discovery and the plaintiff admitted that he injured his lower back about 30 years prior, but testified that it had healed and he had not had any problems since that time. However, a review of the plaintiff’s medical records later showed that he hurt his lower back several months before the incident when he slipped on a stepladder. His records also revealed that he reported having a “chronic” history of similar episodes as well as a herniated disc. Additionally, when he went to the emergency room after the most recent accident, he reported that his back pain started “a long time ago.”

Continue reading

by

All Florida personal injury claims have certain elements that must be met before a jury can award a plaintiff compensation for the injuries they have sustained. In general, all lawsuits brought under the umbrella of “negligence” must establish that the defendant violated a duty of care that was owed to the plaintiff, and that the defendant’s violation of that duty resulted in the plaintiff’s injuries.

Specific to Florida premises liability lawsuits, a plaintiff must establish the following:

  • The defendant knew or should have known that the hazard existed;
  • The defendant failed to remedy the hazard or warn the plaintiff about the hazard if it was unable to be fixed; and
  • The plaintiff was injured as a result.

While this sounds simple in theory, in reality these cases are often much more complex. Often, this comes down to a plaintiff’s ability to show the court that the defendant landowner had knowledge of the hazard that caused their injuries. A recent decision issued by the Third District Court of Appeal illustrates how lower courts sometimes get the analysis wrong.

Continue reading