Articles Posted in Personal Injury

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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photo_15190_20091030It 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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photo_1891_20060818In 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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DSC08853-bA 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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photo_1832_20060728As 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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cruise ship in portAs the home of two of America’s three busiest cruise ship ports and the headquarters of numerous cruise companies, the South Florida metropolitan area hosts a considerable amount of litigation involving personal injury at sea. A common surprise to many litigants, however, is that Florida law does not apply in these actions. Instead, federal admiralty law, also known as maritime law, controls the disposition of recovery for those harmed aboard ships on navigable waters. One recent case, Gandhi v. Carnival Corporation, demonstrates how application of admiralty law can limit the possibility of full recovery for those injured on cruise ships and the importance of understanding the nuances of this distinct body of law.

In Gandhi, parents of a child injured aboard a Carnival Cruise Lines ship brought suit against the company, both personally and on their daughter’s behalf. The plaintiffs’ daughter was injured while standing in a ship elevator when one of her arms was drawn into a space into which an elevator door was closing. Although her arm was ensnared, the elevator door attempted to open and close several times, a process which continued until a fellow passenger freed the arm with assistance of a chair leg. As a result, the child suffered a deep laceration to one of her elbows, severing of several tendons, and a fracture. Her father, who witnessed the entire ordeal, further alleged to have suffered severe emotional trauma. The parents brought suit against Carnival in the U.S. District Court for the Southern District of Florida for the following claims:  a negligence claim for damages of the minor child, a claim for damages pursuant to the negligent infliction of emotional distress, a damages claim for medical expenses incurred, and a damages claim relating to the loss of filial consortium. Carnival brought a motion to strike provisions from the first claim and to dismiss the remaining claims, and the court, applying admiralty law, sided with Carnival.

First, as a preliminary matter, the court noted that general maritime law controlled in this action and that neither general common law nor state law would be consulted unless there was an absence of maritime law on an issue to be decided. Next, the court moved to the plaintiffs’ claim of negligence. Although Carnival did not move to dismiss this claim, it did move to strike parts of the pleading that appeared to improperly assert the doctrine of res ipsa loquitur. Generally, the doctrine of res ipsa loquitur permits a jury or other fact-finder to infer negligence when the circumstances of person’s injury are of a variety that usually does not occur in the absence of negligence. Although maritime law allows for the inference of res ipsa loquitur to be raised in a claim for negligence, the court agreed that is was improper to raise the doctrine in the pleadings, since res ipsa loquitur is not a cause of action but rather an evidentiary principle on which a court may, in its discretion, later instruct the jury. Next, the court turned to the negligent infliction of emotional distress claim. Although Florida law allows a relative bystander to recover for negligent infliction of emotional distress when he witnesses the negligent injury of a loved one and suffers emotional trauma leading to demonstrable physical harm as a result, see Champion v. Gray, 478 So.2d 17 (Fla. 1985), maritime law adheres to the “zone of danger” test. Pursuant to this standard, one may not recover for negligent infliction of emotional distress unless he or she “sustain[s] a physical impact as a result of a defendant’s negligent conduct, or [is] placed in immediate risk of physical harm by that conduct.” Although the father in this case witnessed the injury of his daughter, there were no facts suggesting that he was in an imminent zone of danger. Accordingly, pursuant to the standard set forth in maritime law, the father could not recover for negligent infliction of emotional distress.
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dark-house-2-1193482-mIn the aftermath of tragedy, it is a natural reaction to assign blame to others, whether attribution is justified or not. This impulse is at the heart of the Fourth District Court of Appeals’ recent decision in Knight v. Merhige, in which the court held that the parents of a man who fatally shot several relatives at a family gathering on Thanksgiving of 2009 could not be held liable for their son’s conduct. Although the decision will likely do little to mend fractured intra-familial ties, the Fourth District’s holding demarcates a clear line with respect to when someone may be held liable for the conduct of another.

As noted above, the suit at issue follows a tragic incident on November 26, 2009. On that day, the son of the defendants in this case, who was 35 at the time, retrieved a gun during an annual family get-together and fatally shot four of his relatives, including both of his sisters, and seriously injured another. After the shooting, the son pled guilty to the murders and was sentenced to life imprisonment. The son had a long history of violence and mental health issues and had on several previous occasions threatened and assaulted members of his family. Although he had been prohibited from attending Thanksgiving festivities the year before at the request of the relatives who were hosting, his parents invited him to attend in 2009 without either seeking permission of the hosts or informing other family members. Until shortly before the shooting, the son lived with the parents, but his parents had recently elected to set up him up in his own condominium while continuing to provide him with financial support, some of which was used to procure firearms. A housekeeper who cleaned the son’s condominium and routinely reported to parents informed them that he had ceased attending mental health treatment and taking medication.

Given the context of the son’s assault, relatives brought three separate wrongful death and personal injury lawsuits against the parents, which were consolidated for appeal. Although they were distinct, the suits were predicated on similar theories of negligence. Specifically, the lawsuits alleged the following:  1) by furtively inviting their son, the parents created a “foreseeable zone of risk” for the relatives, and they failed to exercise prudent care in managing the risk they created; and 2) the parents had a “special relationship” to their son such that they had to duty to exercise reasonable care in his “supervision, guidance, control, direction, security, monitoring and management,” and failure to exercise reasonable care amounted to a breach of this duty. The trial court dismissed each of the suits, noting the general rule that “there is no duty to control the conduct of a third person to prevent him from causing physical harm to another,” and holding that the respective plaintiffs had failed to overcome the burden of demonstrating a special relationship that would give rise to a legal duty to control the son’s conduct. The plaintiffs appealed the dismissals.

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street-fight-379259-mIt goes without saying that Chapter 776 of the Florida Statutes, more commonly known as Florida’s Stand Your Ground Law, has recently been the subject of heated discussion. Although commentators across the nation have extensively delved into the substance of the law and proffered opinions on Chapter 776’s merits and detriments, few have looked at the law’s implications outside of the criminal setting.

Recently, however, the Third District Court of Appeals assessed the importance of Stand Your Ground Law in the civil setting. In Professional Roofing and Sales, Inc. v. Flemmings, the Third District Court of Appeals determined whether the immunity granted pursuant to Chapter 776 in a previous criminal case definitively foreclosed liability in subsequent personal injury litigation.

Mr. Flemmings, the plaintiff in this action, brought the suit at issue against his former coworker and employer for an incident dating back to the winter of 2008. In 2008, Mr. Flemmings was beaten with a baseball bat by a coworker who was later arrested and charged with aggravated battery with a deadly weapon. In the criminal case, the coworker argued that the battery was a justifiable use of force pursuant to Florida’s Stand Your Ground Law and brought a motion to dismiss the charges. After conducting an evidentiary hearing, the criminal court granted the motion. Prior to final disposition in the criminal case, Flemmings filed a personal injury suit against the coworker and his employer. Following the criminal court’s determination, the defendants moved to have the civil case dismissed, arguing that the criminal court’s determination barred civil liability. The trial court denied the motion and stated that the issue was more appropriately handled at the summary judgment phase. The defendants sought immediate review of the decision.

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IMAG0562On Tuesday, April 22, the Florida House of Representatives unanimously voted in favor of enacting the Aaron Cohen Life Protection Act, legislation that stiffens penalties for hit-and-run drivers. This follows the March 26 unanimous vote of the Florida Senate in favor of the Act, which will now go to the Governor’s desk for approval and signature. The Aaron Cohen Life Protection Act is the product of an unfortunate death of a cyclist who was hit while riding on the Rickenbacker Causeway in February 2012.

The hit-and-run driver, who was on probation for cocaine charges and was driving with a suspended license, had been carousing at a bar in Coconut Grove shortly before the 6 AM accident. After he hit the deceased person and another cyclist, the driver did not stop to offer assistance or wait for the authorities. Instead, he continued his journey home, where he concealed the damaged vehicle under a tarp. By the time he eventually surrendered to authorities, 18 hours after the accident, the police were unable to take a timely blood alcohol test. Inability to ascertain the driver’s blood alcohol level helped him avoid manslaughter charges. The driver eventually pled guilty to charges of driving with a suspended license, leaving the scene of an accident involving death, and leaving the scene of an accident involving great bodily harm. The driver was sentenced to only one year in prison and only served 264 days of the sentence.

The Aaron Cohen Life Protection Act seeks to eliminate the incentive hit-and-run drivers have in leaving the scene of an accident. The new law amends Florida’s Leaving the Scene of an Accident Law, which was enacted in 1971. The law creates a mandatory minimum sentence of three, seven, or 10 years for leaving the scene of an accident, depending on whether a person was injured, seriously injured, or fatally injured. The legislation also increases the mandatory minimum sentence for leaving the scene of an accident while under the influence of alcohol from two years to 10 years and provides for a three-year revocation of the offender’s license. By imposing these mandatory minimums, lawmakers hope that hit-and-run drivers, especially those under the influence of alcohol or drugs, will no longer see any incentive in fleeing.
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openphotonet_P1040376%20(854x1280)Fewer than five months after its formative opinion in McCall v. United States, the Supreme Court of Florida will once again examine the legality of Florida’s statutory caps on noneconomic damages in medical negligence suits. On June 4, the court will hear the oral argument in Miles v. Weingrad, which raises the question of whether caps on recovery of noneconomic damages in medical malpractice negligence actions can be retroactively applied to claims that accrued prior to implementation of the statutory cap legislation. The court originally granted discretionary review of Miles before its decision in McCall and has now requested supplemental briefing on the effect of the McCall decision on the case at hand. In particular, Miles affords the court an opportunity to address both the constitutionality of statutory caps in personal injury medical negligence cases and the question of whether the McCall decision should be applied only prospectively.

To say that the Miles case has been in court for quite some time would be an understatement. The case was originally brought in January 2006. The plaintiffs, Miles and her husband, sued a physician whom they solicited for a second opinion on whether a different physician had completely removed a cancerous melanoma. The physician, Weingrad, informed them that the first physician had not completely excised the entire tumor, and Miles underwent a second surgery. Miles and her husband later found out that the second surgery was unnecessary, since the first physician had, in fact, removed all traces of the melanoma. Unfortunately, the second surgery came with complications, including infection and persistent swelling that continues to hinder her mobility. After a trial, the jury awarded $1.5 million in non-economic damages and a little over $16,000 in economic damages. However, the defendant requested that the trial court apply newly implemented statutory provisions that apply aggregate caps on the recovery of non-economic damages in medical negligence suits. The trial court refused to impose the statutory cap, since the cause of action had accrued nine months prior to the effective date of the legislation. On appeal, the Third District Court of Appeals overturned the trial court decision and held that the statutory cap may be imposed retroactively.

After further appeals and remands, the Miles case now finds itself before the Supreme Court of Florida. However, in light of the recent McCall decision, the disposition of the case carries import beyond the original question it raised. In McCall, the court specifically eschewed addressing the constitutionality of aggregate statutory caps on non-economic damages in actions beyond wrongful death actions. Miles, however, is a personal injury medical malpractice case and provides the court the opportunity to address the constitutionality of statutory caps as applied in these actions. If you remember, the same statutory provisions on non-economic damage caps govern both types of wrongful death and personal injury medical negligence actions.

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