Civil Procedure Category Archives — South Florida Injury Attorneys Blog Published by South Florida Injury Lawyers

September 23, 2015

Florida’s First District Court of Appeal Reverses in Medical Negligence Suit

Given the different procedural and substantive rules that apply in medical negligence cases, distinguishing medical negligence from ordinary negligence is a fundamental issue in cases that possibly implicate medical negligence. Indeed, many attorneys are aware of the far more arduous standards that apply to medical negligence, and they will often try to purposefully describe the facts and underlying legal theories of a case in order to avoid it being placed in the ambit of medical negligence liability. Although artful pleading can occasionally be successful, courts define medical negligence broadly and, as a result, stymie many creative attorneys’ attempts to avoid these heightened rules for liability. For instance, the scope of medical negligence was an issue in a recent decision from Florida’s First District Court of Appeal, Shands Teaching Hosp. and Clinics, Inc. v. Estate Of Lawson, which addressed whether an alleged act of negligence arising from services provided at a psychiatric unit qualified as “medical negligence.”

Lawson followed a tragic accident in January 2013. The plaintiff in this case is the estate of a woman who, two months prior to the date of the accident, had been admitted to the facility for a psychiatric condition. Although she was confined in a locked psychiatric ward, the woman was able to retrieve an employee’s unattended keys and badge and abscond from the facility. The woman went to a nearby interstate, where she was struck by an oncoming truck and died. Her estate brought suit against the facility, arguing that the defendant’s action amounted to “ordinary negligence.” The facility moved to dismiss, contending that the complaint sounded in “medical negligence,” and therefore the plaintiff needed to comply with the provisions of Section 766.106(1)(a) of the Florida Statutes. Since the plaintiff did not comply with the mandatory pre-suit requirements of Section 766.106(1)(a), the facility argued that the complaint should be dismissed.

September 16, 2015

South Florida Federal Court Denies Equitable Tolling in Cruise Ship Negligence Case

by Frankl & Kominsky Injury Lawyers

Cruises are intended to be memorable and fun. However, a frolic on the sea is not free of risk. Indeed, the facts of a recent decision from the United States District Court for the Southern District of Florida, Pettit v. Carnival Corp., show that sea voyages are not without potential mishaps.

The accident at issue in Pettit occurred on September 24, 2013. The plaintiff in this case was a passenger on the Carnival Breeze. While at sea, the plaintiff slipped and fell, leading to various physical injuries. Once back on the ground, the plaintiff brought suit against Carnival in a Florida state court in Miami-Dade County. However, the contractual terms on the plaintiff’s ticket, in particular the forum selection clause, required that she bring suit in the United States District Court for the Southern District of Florida. Two months afterward, the plaintiff finally served Carnival. Carnival then moved to dismiss the suit based on improper forum. Realizing the error, the plaintiff then filed the complaint in federal court. This, however, didn’t solve the plaintiff’s trouble. The ticket contract also included a statute of limitations provision that afforded passengers only one year to bring personal injury suits. The plaintiff had filed her state court suit only 12 days before the expiration of the contractual statute of limitations, and by the time the plaintiff filed suit in federal court the statute of limitations had long elapsed. Carnival moved for summary judgment, asserting the plaintiff’s claim was time-barred. The plaintiff opposed, arguing that the statute of limitations should be equitably tolled. Unfortunately for the plaintiff, the trial court concluded otherwise.

August 26, 2015

Florida’s Second District Court of Appeal Reverses and Compels Arbitration in Nursing Home Abuse Case

by Frankl & Kominsky Injury Lawyers

In light of Florida’s large elderly population, it’s not surprising that the Florida legislature has specifically passed legislation providing specific rights to those who reside in nursing homes. See §§ 400.022-.023, Fla. Stat. (2010). However, among the many rights encompassed in these provisions is not one assuring that these rights must be adjudicated in a court. Indeed, these claims, like many others, can be subject to compelled arbitration when an unwitting party signs away his rights to formal adjudication. Given that arbitration can pose the risk of unfair or inadequate adjudication of rights, the enforceability of these provisions is often a topic of litigation. For instance, the Second District Court of Appeal recently issued its decision in Greenbrook NH, LLC v. Estate of Sayre, which addressed whether an arbitration agreement entered into by the daughter of a nursing home resident was enforceable.

Sayre arose from an alleged act of negligence at a nursing home facility in St. Petersburg, Florida. The plaintiff in this case is the daughter of a deceased nursing home resident who brought this action as the representative for the decedent’s estate. The decedent resided at the nursing home for most of 2011. Following the death, the plaintiff brought suit against the nursing home for both negligence and the violation of the decedent’s nursing home resident’s rights under §§ 400.022-.023 of the Florida Statutes. At the time the daughter placed her mother in the nursing home, she signed an arbitration agreement as her mother’s authorized legal representative. In light of this arbitration agreement, the nursing home moved to dismiss and compel arbitration. The trial court denied the motion, finding that the agreement was invalid and unenforceable because portions of the copy of the arbitration agreement proffered to the court were obscured. The nursing home then brought the current appeal, arguing that despite the photocopying error, the trial court’s factual finding was in error because the other terms of the agreement were sufficiently clear and definite to make the agreement enforceable.

August 5, 2015

South Florida Federal District Court Denies Dismissal of Airline Negligence Suit

by Frankl & Kominsky Injury Lawyers

Can an airline be subject to negligence liability for denying boarding to a customer? Although it did not fully address this question, a recent decision from the United States District Court for the Southern District of Florida, Pipino v. Delta Air Lines, Inc., assures that we will get more discussion of the issue.

The plaintiff in this case was a ticketed passenger for a flight from New York to Tampa on Delta Airlines, the defendant in this case. The plaintiff alleges that an agent for the airline denied her the privilege of boarding because the agent believed she was intoxicated. The plaintiff, however, alleges that she was suffering from a panic attack and that the airline’s refusal to let her board the plane and failure to obtain medical attention for her caused both emotional and psychological harm. Following this incident, the plaintiff brought suit against Delta to redress these injuries. The airline moved to dismiss, arguing that venue in the Southern District of Florida was improper and that the plaintiff’s claims were otherwise preempted under federal law. The district court, however, found both arguments unavailing and denied the airline’s motion to dismiss.

July 29, 2015

Florida’s Second District Reverses Discovery of Military Records in Personal Injury Case

by Frankl & Kominsky Injury Lawyers

It is understood that bringing legal action will expose your personal life to some degree of outside scrutiny. Indeed, court records are, except in limited circumstances, made available to the public. Although the dockets in most cases aren’t particularly intriguing to third parties, many litigants are legitimately concerned about what facts they let become part of a public record. This dynamic was at the heart of a recent decision from Florida’s Second District Court, Muller v. Wal-Mart Stores, Inc., which required the Second District Court of Appeal to determine whether a plaintiff’s military records were discoverable in his personal injury case.

Muller started with an accident in 2012. The plaintiff was hit by a truck owned by Wal-Mart that was being driven by an employee at a corporate distribution center. As a result of the accident, the plaintiff sustained various injuries and brought suit against Wal-Mart for various forms of bodily injuries, including, inter alia, aggravation of preexisting conditions. During the course of discovery, the defendants learned that the plaintiff had previously served in the military for more than a decade. The plaintiff stated that he had three injuries associated with his military service but asserted that he was not seeking damages for aggravation of any of his military-related injuries. Subsequently, the defendants served an additional discovery request, seeking the plaintiff’s military records. The plaintiff objected, arguing that the request was both irrelevant and violated his right to privacy under the Florida Constitution. The defendants moved to compel the discovery, and the trial court granted the motion in its entirety. Thereafter, the plaintiff brought the current appeal, seeking immediate review of the trial court’s discovery decision.

June 17, 2015

Second District of Florida Tackles Bar Fight Appeal

by Frankl & Kominsky Injury Lawyers

The phrase “premises liability” is generally associated with slip and falls or shoddy construction. However, premises liability can extend to a wide variety of other types of dangerous conditions. For instance, the Second District Court of Appeal recently rendered judgment in Grover v. Karl, which addressed whether a business owner could be liable for a patron’s injuries arising from a bar fight.

Grover started with a fight at The Karl Reef, which is located near New Port Richie, Florida. The plaintiff did not participate in the fight, but she fell and was injured during the course of events. The plaintiff brought a premises liability suit against the bar’s alleged owner and property owner. The bar’s manager was near the plaintiff when the fight ensued. The facts regarding how the plaintiff fell were unclear. The plaintiff originally alleged that she fell when a different bar patron intentionally attacked her. However, during her deposition, the plaintiff testified that when the fight broke out, the manager was shoved and, as a result, fell onto the plaintiff unintentionally. Following discovery, the defendant moved for summary judgment, contending that the allegations in the complaint were contradicted by the deposition testimony, and there was no issue of material fact regarding the defendant’s notice of the danger or an opportunity to prevent it. Following the defendants’ motion for summary judgment, the plaintiff moved to amend her complaint. The proposed amended complaint sought to add the bar’s manager as a defendant and change the allegations so that they were more consistent with the deposition testimony. Specifically, the plaintiff sought to allege that the manager grabbed her arm and jostled her during the fight, resulting in the fall. The trial court granted summary judgment based on the original complaint and denied the plaintiff leave to amend. The plaintiff appealed.