Articles Posted in Serious Injury

bicycle-against-wall-1563544-300x225Under the common law, collateral source evidence was generally inadmissible for both determinations of liability and damages. Finding that this rule promoted double recovery in certain instances, the Florida legislature abrogated this rule in the 1980s and adopted the current set-off rule, which requires a trial court, with certain exceptions, to reduce a damages award by “the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources.”  Fla. Stat. § 768.76 (1). Although the collateral source rule was abrogated with respect to damages, Florida courts have found the impact of the rule limited with respect to the evidence admissible to a jury for making a determination of liability. However, the Florida Supreme Court articulated one major expectation to the common law collateral source rule in Fla. Physician’s Ins. Reciprocal v. Stanley, 452 So. 2d 514 (Fla. 1984). In Stanley, the court held that “evidence of free or low cost services from governmental or [charities] available to anyone with specific disabilities is admissible on the issue of future damages.” Given the uniqueness of this rule, Florida courts have after struggled with its application and, in many cases, limited it to the particular facts. For example, the Supreme Court of Florida was once again called upon to grapple with the scope of Stanley in Joerg v. State Farm Mutual Auto. Ins. Co.

The facts underlying Joerg are quite unfortunate. The plaintiff in this case was a developmentally disabled adult who was struck by a car while riding his bicycle in November 2007. The plaintiff had lived with his parents for his entire life and had never been employed. Following this accident, the plaintiff brought a negligence suit against the driver of the other vehicle and his personal uninsured motorist insurer, State Farm Mutual. Prior to trial, the plaintiff filed a motion to limit introduction of evidence about collateral sources, including benefits under Medicare and Medicaid. The trial court ultimately ruled that the insurer could introduce evidence of “future medical bills for specific treatments that are available . . . to all citizens regardless of wealth or status” but that evidence of future Medicare and Medicaid payments could not be introduced. The insurer appealed, and the Second District Court of Appeal affirmed the trial court ruling, except finding that the future Medicare payments should not have been excluded under the collateral source rule. An appeal to the Florida Supreme Court followed.

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pool-1534215-300x200Many South Floridians understand that pools come with risks. Indeed, pool owners are  very aware of the dangers associated with falls and drowning. Notwithstanding the importance of these commonplace risks, the pool-related injury at issue in a recent product liability decision from Florida’s Third District Court of Appeal, Dominguez v. Hayward Indus., Inc., was certainly not of a kind anyone would anticipate.

Dominguez arose from the unexpected explosion of a pool filter, which occurred in November 2012. At the time of the explosion, one plaintiff in this case was near the pool, which had been completed in 1999, and he sustained head injuries. He and his wife brought suit against the manufacturer/distributor of the filter, the company that installed the pool and acted as a distributor of the filter, and the pool contractor. The plaintiff asserted claims for strict product liability and negligence against the first two defendants and negligence claims against all of the defendants. The plaintiffs also asserted a loss of consortium claim. The trial court ultimately granted a final judgment in the defendants’ favor, and the plaintiff then filed this appeal.

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photo_18983_20101112In a recent and interesting decision, School Board of Miami-Dade County v. Martinez-Oller, Florida’s Third District Court of Appeal addressed whether a high school principal was negligent for failing to disclose a student’s poor disciplinary record to one of her teachers who witnessed an attack perpetrated by that student against another. In an unanimous decision, the Third District determined that the principal did not owe a duty of care to disseminate the student’s disciplinary records, and thus the principal and the school could not be deemed negligent.

The altercation at issue in the case occurred on March 22, 2010. The students were in a world history class when one student directed opprobrious language at another. Insulted, the student hurled an eight-pound textbook at the other. The book made contact with the other student and fractured his eye socket. The teacher was only about three feet away from the students when the incident happened, but the teacher didn’t hear the triggering language. A little more than a year later, the injured student, by and through his parents, brought suit against the school district. The plaintiff asserted claims sounding in negligent supervision, arguing that the principal had a duty to report the attacker’s previous disciplinary incidents to teachers. Under federal law, a student’s educational records, including disciplinary records, are entitled to privacy but may be disclosed to teachers if there is a “legitimate educational interest.” Under Florida law, disciplinary records are maintained at the school but are only accessible to the principal and vice principal unless there is a legitimate educational interest determination made authorizing their dissemination. Although no determination had been made, the trial court had directed a verdict with respect to the issue of whether the principal and, by extension, the school district owed a duty to disclose the student’s prior disciplinary issues to her teachers. The jury was instructed on this and further instructed that the only issue remaining for its determination was whether harm to the injured student was “caused” by the school’s failure to disseminate these records.

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photo_1137_20060220Although a driver having an unanticipated seizure and slamming her vehicle into the vehicle of someone else sounds more like a TV drama than the facts of an actual case, the facts underlying the Second District Court of Appeal’s recent decision in Marcum v. Hayward show that situations that sound imaginary can indeed happen in reality.

The Marcum litigation was set into motion by a motor vehicle accident in Central Florida. One of the defendants in the case was driving a vehicle owned by her employer, Artistic Pools of Florida, Inc., and testified that while she was driving she felt she had temporarily lost consciousness, regained it, and then lost it again before she saw paramedics. A fellow employee riding in the car similarly testified that the driver stated she felt she had lost consciousness and that she didn’t feel well. Apparently, she had asked her passenger where they were headed and soon thereafter lost consciousness. The coworker also testified that after the driver lost consciousness he tried to use his hand to engage the brake but was prevented by the seat belt from doing so. After the driver lost consciousness, the vehicle collided with the vehicle of the victim, who said that she found the defendant suffering from a seizure when she walked to her car after the crash. Following the accident, the victim brought suit against the driver, Artistic Pools, and the driver’s auto liability insurer, asserting claims of negligence.  The driver moved for a directed verdict, arguing that she could not be found negligent because she had suffered a sudden, unforeseeable seizure, and the time between the onset of this seizure and the crash was insufficient for preventative measures to be taken. The trial court denied the motion for a directed verdict.

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cuise ships in portAlthough contract formation is often considered a formal process involving parties sitting at a conference table negotiating terms and memorializing a final agreement, every day people unknowingly enter into binding agreements that have sweeping implications for their rights. The realities of modern contracting are at the center of the Third District Court of Appeals’ recent decision in Royal Caribbean Cruises, Ltd. v. Clarke, in which the court held that the forum selection provision of a contract contained on the cruise line ticket should have been enforced by the trial court.

The Clarke litigation began when a passenger allegedly injured while abroad a Royal Caribbean Cruise vessel brought a negligence action against the company on October 9, 2013 in Miami-Dade County. The action was initiated only a few days before the expiration of the one-year limitations period imposed by the ticket contract. Shortly after the claim was brought, Royal Caribbean moved to have the case dismissed, arguing that the claim had been improperly brought in state court rather than federal court, as was provided by the forum selection provision of the ticket contract. In support of this motion, Royal Caribbean submitted an affidavit stating that the plaintiff, like all other passengers, needed to check in and accept all the terms of the ticket contract before boarding the vessel. The trial court denied the motion, holding that there was no evidence that the plaintiff actually received and read the ticket contract provisions. However, the Third District Court of Appeal unanimously reversed the trial court’s ruling and dismissed the case.

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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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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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openphotonet_IMG_0318Although most claimants for disability benefits never imagine that the resolution of their claims will create much in the way of buzz, one injured firefighter’s request for benefits has led him all the way to the Supreme Court of Florida. On June 5, the Supreme Court of Florida heard oral argument in Westphal v. City of St. Petersburg, which addresses a recurring problem for claimants currently receiving temporary total disability benefits and seeking to acquire permanent total disability benefits. Specifically, the case deals with a “statutory gap” created by the provisions § 440.15 of the Florida Statutes, which leaves certain disabled workers without any form of disability benefits as they transition from temporary to permanent total disability.

Bradley Westphal, a firefighter and paramedic, injured his knee and back while moving heavy furniture during a fire. Westphal’s severe injuries resulted in nerve damage and required both spine surgery – specifically, a five-level fusion of the lumbar spine – and a host of other medical treatments. His employer accepted his injury as compensable and paid Westphal temporary total disability benefits pursuant to § 440.15(2)(a). Entitlement to temporary total disability benefits is limited to 104 weeks, and Westphal, who remained unable to work per medical advice, filed a claim for permanent total disability benefits towards the end of his temporary benefit entitlement window. To establish entitlement to permanent total disability benefits, one must show “not only total disability upon the cessation of temporary benefits but also that total disability will be existing after the date of maximum medical improvement.” City of Pensacola Firefighters v. Oswald, 710 So. 2d 95 (Fla. 1st DCA 1998). Westphal’s claim was denied based on the testimony of the physician who performed Westphal’s second surgery and stated that Westphal was still recovering from his second surgery and, thus, it was too soon to determine whether he had attained maximum medical improvement. Accordingly, although Westphal was presently “totally disabled” and could very well remain totally disabled even with maximum improvement in condition, he could not receive permanent benefits because improvement beyond total disability was still conceivable. Westphal would therefore have to wait until evidence was conclusive that he would remain totally disabled even after attaining maximum medical improvement before he could receive benefits.

Westphal appealed the denial of his claim to Florida’s First District Court of Appeal. The original panel of three judges unanimously held that the denial of benefits amounted to an unconstitutional denial of access to the courts under article I, section 21, of the Florida Constitution. However, the full panel of judges of the First District Court of Appeal granted a motion for rehearing en banc. In this later decision, the en banc court withdrew the panel decision but still found in Westphal’s favor. The court reversed an earlier appeals court precedent and adopted a new statutory construction of the disability provisions, holding that “a worker who is totally disabled as a result of a workplace accident and remains totally disabled by the end of his or her eligibility for temporary total disability benefits is deemed to be at maximum medical improvement by operation of law and is therefore eligible to assert a claim for permanent and total disability benefits.” Finding that their decision concerns a question of great public importance, the court then certified the case for review by the Supreme Court of Florida.

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2Last month, a crane being used for construction on a lot in an affluent enclave of Hallandale Beach collapsed, leading to the death of one construction worker. The collapse occurred at approximately 9:40 AM, as the crane was being moved in the worksite, located at the 400 block of Alameda Drive in Hallandale. According to reports, the crane started to wobble during the moving process and eventually tipped over. Although the workers scattered, one was unable to flee in time and was struck by the falling crane. The crane also hit a neighboring home, causing damage to the roof and air-conditioning system. The police as well as representatives from the U.S. Occupational Safety and Health Administration (OSHA) are investigating what may have caused the collapse, and both the crane’s driver and boom operator submitted blood samples as part of the investigation.

Unfortunately, crane-related fatalities are not uncommon. Since 2011, there have been six crane-related deaths in Florida, and according to the U.S. Department of Labor, nearly 100 people die annually in crane and derrick accidents. Following a spate of these accidents, including a 2008 incident in downtown Miami that caused two deaths, OSHA in 2010 updated its crane regulations, which had largely been unchanged since they were first enacted in 1971. In addition to promulgating regulations, OSHA also performs worksite investigations and issues citations for safety violations. However, many of these investigations occur, as in this recent incident, after an accident has already occurred.

Certain states and municipalities have implemented their own crane regulations. In fact, following a series of accidents and less than a month before the aforementioned accident in downtown Miami, Miami-Dade County issued an ordinance regulating crane inspection and operator certification. Ultimately, a federal judge ruled that certain provisions of the ordinance conflicted with OSHA regulations and were thus preempted by federal law and unenforceable. However, the Florida Legislature went a step further in 2012 when it passed House Bill 521. HB 521 preempts all local regulation of “hoisting equipment and persons operating the equipment.” Given the paucity of related state law and regulation, HB 521 in effect limits the regulation of cranes to existing federal regulation.

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Although changes to the law of evidence do not typically engender much in the way of debate, Florida litigants are now seeing the harsh realties that can be associated with revisions that typically go unnoticed. In Perez v. BellSouth Telecommunications, Inc., a panel of judges for the Third District Court of Appeals unanimously affirmed a trial court decision to exclude testimony from the plaintiff’s personal obstetrician, a physician with over two decades of experience, in part because of recent legislation that placed stricter limits on the admissibility of expert testimony.

This decision follows passage of Florida House Bill 7015, which amended Section 90.702 of the Florida Evidence Code, the provision governing the admissibility of expert testimony in both civil and criminal litigation. Prior to passage of HB 7015, courts in Florida applied what is commonly known as the “Frye Standard.” Pursuant to this standard, Florida Courts permitted the inclusion of expert opinion testimony so long as the testimony was based on scientific methods that were sufficiently established and had gained general acceptance in the particular field to which they belong.

HB 7015, however, did away with Frye and incorporated the “Daubert Standard,” a stricter evidentiary rule that has been utilized in Federal Courts since 1993. Daubert, unlike Frye, places greater emphasis on the scientific methodology from which an expert’s opinion is formed, and induces greater exclusion of evidence that is not derived from empirical testing, peer review, or controlled examination. Accordingly, even if an expert’s testimony may be relevant and based on sound reasoning or ample practical experience, it may still be excluded for a lack of scientific verifiability.

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