As a general rule, litigants in Florida car accident cases must raise any issues they have with the trial court’s decisions at the moment a decision is made. Similarly, when responding to a claim or allegation, a party should be sure to make all relevant arguments at that time. Otherwise, a court may consider the argument waived.

Car WreckThe purpose of the waiver rule is to encourage efficient resolution of cases. If, for example, a party were able to raise any issue at any time, courts would find themselves dealing with a never-ending series of motions and requests as the parties came up with new versions of old arguments. Instead, Florida court rules require that parties bring everything they have upfront so that the judge can make one informed decision that will not need to be revisited, absent a legal error. A recent Florida personal injury case illustrates this concept.

The Facts

The plaintiff was injured when another motorist struck her vehicle. The other motorist did not have sufficient insurance coverage to fully compensate the plaintiff for the injuries she sustained. The plaintiff, however, was covered under two other insurance policies:  an Allstate policy in her mother’s name and a Geico policy in her father’s name. The Allstate policy provided $5,000 more in coverage than the Geico policy.

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kelly-sikkema-203594-300x199Last Saturday was busy. I had spent the week working on a particularly difficult case, so I admit I was exhausted to start with. The weekend brought the usual barrage of errands and soccer games, lost cleats and lack of parking, and I very soon found myself close to the end of my proverbial rope. Getting out of the car, I dropped my keys, wallet, water bottle, and extra shirt, causing me to let out a string of expletives usually reserved for private moments away from my kids. In the midst of the chaos, my young daughter came over and put her hand on my face. “It’s ok, Daddy. I’ll help.” And my world was right again.

For parents, children are literally the center of our universe. We exalt in their highs and sympathize with their lows. We beam with pride over their smallest accomplishments and spend sleepless nights worrying about their future. We attend their sporting events and school activities, and we work hard to make sure they are happy, healthy, and that they have the best lives possible.

Most importantly, we strive to protect them and to keep them safe.

Earlier this month, the District Court of Appeal for the Fourth Circuit issued an opinion in a Florida premises liability case illustrating the difficulties some plaintiffs have when pursuing claims arising from injuries sustained while engaging in recreational activity on another party’s property. The case presented the court with the opportunity to clarify seemingly confusing language in the state’s recreational-use statute. Ultimately, the court resolved the issue in favor of the government defendant, and the plaintiff’s case was dismissed.

RollerbladingThe Facts of the Case

The plaintiff was rollerblading on a street in Delray Beach when he ran into a pothole and fell. He sustained serious injuries in the fall and subsequently filed a premises liability lawsuit against the city. The plaintiff claimed that the city failed to safely maintain the public roadway.

The city claimed that the plaintiff was rollerblading in an area where he was not permitted to do so and that the city should not be held liable. Furthermore, the city pointed to the state’s recreational use statute, which provided immunity to landowners when someone is injured while rollerblading.

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HD-Image-7-1024x683-300x200I was twelve when I first rode a motorcycle. It was just a small dirt bike that belonged to an acquaintance, but riding it gave me an incredible sense of freedom. Like many people, I wistfully remember that bike and the joy it gave me.

I still have numerous friends with motorcycles, and I frequently warn them about the dangers they face on the roadways. As an attorney, I know that that danger doesn’t come from road debris or from faulty bikes. Most accidents involving motorcycles happen not because of any fault of the driver of the motorcycle, but because the drivers of cars don’t see the motorcycle. These drivers change lanes into them, stop suddenly, or take other actions that leave the motorcycle driver unable to avoid an accident.

These are riders doing nothing wrong, but who end up with medical bills, damaged property, and even lost wages thanks to negligence by a driver of a car who simply failed to take due care on the roadway. These drivers need to be held accountable for their actions, and they need to compensate victims for the damage they caused.

All Florida medical malpractice lawsuits must be filed within a certain amount of time, or the judge overseeing the case will dismiss the plaintiff’s case. Pursuant to Florida Statutes section 95.11(4)(b), Florida medical malpractice cases must be filed within two years “from the time the cause of action is discovered or should have been discovered with the exercise of due diligence.” Notwithstanding the above rule, all Florida medical malpractice cases must be filed within four years of the alleged act of negligence.

X-RayUnderstandably, the inclusion of the phrase “should have been discovered with the exercise of due diligence” can lead to confusion and is often a point of contention in Florida medical malpractice cases. In a recent Florida appellate opinion, the court was tasked with determining whether a plaintiff’s case was filed within the two-year statute of limitations.

The Facts of the Case

The plaintiff had a mammogram performed, the results of which were interpreted by the defendant, a radiologist. The results of the mammogram indicated that there was a nodule in the plaintiff’s body, and the defendant believed that she may have malignant breast cancer. However, the defendant did not tell the plaintiff or her primary care doctor.

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alejandro-escamilla-2-300x200As work-life balance is getting harder to maintain, partly due to the ever-evolving technology that is available to access around the clock, I would like to talk about ways of disconnecting to improve your work habits. Being good at resting is an important component in achieving a well-balanced work-life-schedule.

  • Unplug. As work day seems to never end, find a suitable time when you are able to shut your phone off and enjoy the moment, whether it’s with your family, friends or pets.
  • Don’t be a perfectionist. As you get older it’s harder to maintain perfectionist tendencies. It could be very disruptive to your everyday activities.

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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