Articles Posted in Personal Injury

When someone is injured in a Florida accident, the state’s law allows them to file a civil suit against the responsible party. If successful, plaintiffs may be able to recover monetary compensation to cover lost wages, pain and suffering, past and future medical expenses, loss of consortium, and even funeral and burial expenses. This compensation is called compensatory damages. In some cases, plaintiffs can also file for what is called punitive damages. In contrast to compensatory, Florida punitive damages focus on punishing the defendant, rather than making the plaintiff whole.

Punitive damages are only available in a small percentage of cases, where the conduct of the defendant was particularly egregious. But when they are awarded, they can be set as high as $500,000. Thus, when they are sued, it is in the defendant’s best interest to ensure that the plaintiff does not seek punitive damages. Generally, Florida has two situations in which plaintiffs can receive punitive damages—when the plaintiff can prove either intentional misconduct or gross negligence. Intentional misconduct occurs when someone knows that their conduct was dangerous and could injure someone but did it anyway. Gross negligence occurs when someone, indifferent to the life and safety of others, acts extremely recklessly or carelessly.

Plaintiffs may sometimes want to amend their complaint to seek punitive damages after it has already been filed. Section 768.72(1) of the Florida Statutes does allow plaintiffs to do just that in cases where “there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” Whether or not a trial court grants this amendment is very important to a case; the Florida Supreme Court held 25 years ago that appellate courts cannot review a lower court’s decision to allow an amendment to a suit to include punitive damages so long as the judge follows proper procedures.

In April of 2019, a state appellate court issued a written opinion in a Florida personal injury case discussing whether the plaintiffs were properly allowed to amend their complaint to add a claim for punitive damages against the defendant. Ultimately, the court concluded that the trial court followed the required procedures when granting the plaintiffs leave to amend, and that the appellate court did not have jurisdiction to reconsider the lower court’s substantive legal decision once it determined the procedures were followed.

According to the court’s opinion, the plaintiffs were the parents of a young girl who was seriously injured when she fell from a ride called “Psycho Swing.” The safety harness was not installed on the ride at the time of the girl’s injury. The plaintiffs filed a personal injury claim against several parties, including the defendant, which was the company that owned the ride and leased it to the company that was operating it when the plaintiff was injured. The plaintiffs claimed that the ride was missing crucial safety equipment and was being operated without the instruction manual.

Initially, the plaintiff sought punitive damages from all other defendants but not the defendant involved in this appeal. However, the plaintiffs soon after requested a second hearing, seeking leave to amend their complaint to add a claim for punitive damages against this defendant. The court considered evidence from the first hearing, as well as deposition testimony from the creator of the ride who stated, among other things, that providing the swing to another company without the safety harness was “unconscionably something that you shouldn’t do.” After hearing all the evidence, the court determined that there was a reasonable basis for the plaintiffs’ claim for punitive damages. The defendant filed an immediate appeal.

Earlier this month, an appellate court issued a written opinion in a Florida wrongful death case brought by a woman whose husband died while in the care of the defendant nursing home. The case required that the court determine whether the plaintiff’s claim involving the validity of the arbitration agreement should be determined by the named arbitrator, or whether it was properly before the court. Citing the lack of a delegation clause, the court determined that the arbitrator lacked jurisdiction to make the determination.

Arbitration in Florida Nursing Home Cases

It is common for a Florida nursing home resident to be provided with an arbitration agreement prior to admission and asked to sign. While a nursing home cannot make admission contingent upon the signing of the agreement, that fact is rarely made known to residents and their families.

The benefits of arbitration flow mostly to the nursing home. For example, the decreased cost of litigation is more important for a nursing home, which may face frequent claims. Similarly, the confidentiality of arbitration benefits the nursing home in the event that the resident’s claim is substantiated. Finally, nursing homes are able to choose the forum where the arbitration will take place, creating the potential for favoritism and bias.

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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.

The 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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As 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.

Under 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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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.

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In a recent per curium decision, the Supreme Court of Florida made a sweeping change to the law associated with pre-injury exculpatory clauses, and, as a result, left many susceptible to injury without recourse. The decision, Sanislo v. Give Kids The World, Inc., overturned precedential decisions from four of Florida’s five District Courts of Appeal, and held that an exculpatory clause insulating a negligent party from liability may be valid even if the clause does not utilize express language indicating that the other contracting party is releasing his or her right to bring negligence claims.

This case started when a negligence action was brought against Give Kids the World, Inc. (“GKTW”), a non-profit organization that provides complimentary vacations to seriously ill children and their families. While on one of these vacations at the storybook village, the mother of the child was seriously injured while standing on a pneumatic lift designed to lift wheelchairs on to a horse-drawn carriage ride. As part of the application process, the parents signed a waiver releasing GKTW from liability. Specifically, the release provided:

“I/we hereby release [GKTW] […] from any liability whatsoever in connection with the preparation, execution, and fulfillment of said wish, on behalf of ourselves, the above named wish child and all other participants. The scope of this release shall include […] damages or losses […] physical injury of any kind […] I/we further agree to hold harmless and to release [GKTW] from and against any and all claims and causes of action of every kind arising from any and all physical or emotional injuries ….”

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A night at the bar with friends does not typically end with someone wielding a tomahawk, but as you will see below, the facts of the Supreme Court of Florida’s decision in Dorsey v. Reider are not like those of a typical personal injury case.

In Dorsey, the plaintiff was injured at the conclusion of a night of imbibing with the defendant and another man with whom the defendant was acquainted at a bar in Pinecrest, Florida. On that night, the defendant, who was the friend of the plaintiff in this case, became increasingly belligerent and was threatening to fight others. In light of his friend’s conduct, the plaintiff used a few choice words to tell the defendant his behavior was obnoxious and proceeded to leave. The defendant and his friend followed. As the plaintiff walked through the parking lot, his path took him between the defendant’s truck and an adjacent vehicle. The defendant ran to the other side while the plaintiff was passing between the vehicles and blocked the plaintiff’s path as the acquaintance blocked him in on the other side. An argument ensued, which lasted for several minutes before the plaintiff heard the truck door open and turned to find that the acquaintance had procured a tomahawk from the truck. The plaintiff then asked the defendant, “What is this?” The defendant did not respond, and the plaintiff then attempted to push the defendant aside in order to escape. After about 15 seconds of struggle, the plaintiff was struck in the head with the tomahawk, which rendered him unconscious. The defendant and the acquaintance then fled. Sometime thereafter, the plaintiff awoke and drove himself to the hospital. As a result of the attack, the plaintiff suffered a variety of serious injuries and continues to suffer from blurred vision, dizziness, and chronic headaches.

Unsurprisingly, the plaintiff brought suit for his injuries. Following a jury trial, the plaintiff was awarded over 1.5 million dollars in damages. On appeal, the Florida Third Circuit Court of Appeal reversed the trial court decision. The Court of Appeal determined that the defendant, who did not actually strike the victim with the tomahawk, did not owe a duty of care to the plaintiff in this case, since there was “no evidence [the defendant] “colluded with [the acquaintance] or knew that [the acquaintance] had the tomahawk and would strike.” Reider v. Dorsey, 98 So.3d 1228 (Fla. 3d DCA 2012). The Supreme Court of Florida, however, determined that this holding was in error.
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As the Fourth District Court of Appeal’s opinion in Marina Dodge, Inc. v. Quinn demonstrates, sometimes the hardest part of a lawsuit is getting the opposing party in court. In Quinn, the Court of Appeals found that the courts of Florida could not exercise personal jurisdiction over two New York auto-retailer corporations that had been sued following a motor vehicle accident in Broward County, Florida.

As noted above, Quinn followed a 2007 motor vehicle accident that led to the serious injury of one of the drivers. The injured driver, the plaintiff in this case, purchased the vehicle involved in the crash in New York four years earlier, when she was still a resident there. Sometime after this transaction but before the accident, the driver relocated to South Florida, where she now resides. After the crash, the seriously injured driver sued the other driver involved in the accident as well as Marina Dodge, Inc. and Webster Auto Brokers, Inc., two New York auto retailing corporations, in the Broward County Circuit Court. With respect to the auto retailers’ liability, the plaintiff argued that the vehicle she purchased in New York was defective and that the defective condition led to the accident and thus her injuries. The corporations both moved to have the claims against them dismissed, arguing that the courts of Florida could not exercise jurisdiction over them. The trial court, however, denied both motions, stating that the corporations had “continuous contact that took place over years with various entities sufficient to permit jurisdiction to lie in the State of Florida.”

Despite the trial court’s certainty on the question of jurisdiction, the Court of Appeal reversed in a unanimous decision. Generally, there are two ways for a plaintiff to show that a court has personal jurisdiction over an out-of-state defendant. First, one can show that the court had specific jurisdiction. For specific jurisdiction to exist, one must first show that the state’s long-arm-statute covers the acts at issue in the suit. If that prong is met, one must then show that there exist sufficient “minimum contacts” between the out-of-state defendant and the state where jurisdiction is sought. For there to be sufficient “minimum contacts,” one must generally demonstrate that the defendant “deliberately [engaged] in significant activities within a State or has created “continuing obligations” between himself and residents of the [state]” such that “he manifestly has availed himself of the privilege of conducting business there.”Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76 (U.S. 1985) (internal quotations marks and citations omitted). Alternatively, one can show that general jurisdiction exists. Since the Florida long-arm-statute provision for general jurisdiction is read coextensively with the constitutional requirement for general jurisdiction, see Caiazzo v. Am. Royal Arts Corp., 73 So.3d 245, 250 (Fla. 4th DCA 2011) (pdf downloadable link), one must just show that the defendant engaged in “continuous, substantial, and systematic” contact with the state.
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