Articles Posted in Wrongful Death

After a car accident, injury victims and their family members who wish to recover compensation for their damages must understand their rights and potential remedies. Establishing fault after a Florida car accident is the most critical aspect of a personal injury claim. Typically if the other motorist’s negligence, carelessness, or recklessness caused the accident, the victim may be entitled to compensation. However, if the other party establishes that the victim was also responsible for the accident, their compensation may be reduced by their fault level. Proving fault and refuting comparative negligence claims are a crucial part of the process.

Florida is a no-fault insurance state, which means that victims must file a claim with their insurance company after an accident, regardless of which party was at fault. The only exception to this rule is if the victim suffered permanent injuries or injuries involving scarring and disfigurement. In Florida, fault is a critical part of this process because the state follows the comparative negligence model of liability. Juries generally calculate two things, the total amount of the plaintiff’s damages and the percentage of fault that belongs to each party. Then a plaintiff’s recovery is reduced by the level of fault the jury attributes to them.

Florida victims must establish fault and refute comparative negligence claims if they wish to recover the maximum amount of compensation for their damages. Establishing fault requires the plaintiff to prove that the other party failed to act reasonably and breached their duty of care. One of the many ways a plaintiff can establish this is by gathering witness statements. Witness statements can provide juries with valuable insight into the events leading up to the accident. Next, digital evidence in the form of photos or videos can provide the jury with vital information. Moreover, if a victim can prove that the other driver was violating a Florida traffic law, the court may impute liability based on negligence per se. This often occurs if the at-fault party received a traffic citation or is arrested after an accident for a traffic crime such as impaired driving or speeding.

Property owners owe guests a duty to ensure that their property is reasonably safe. The extent of the duty a landowner owes to a guest, however, will depend on the reason for the guest’s visit. Under Florida slip and fall law, invitees are owed the greatest duty, while trespassers are owed the lowest duty. Licensees occupy a middle ground.

Florida law distinguishes between public invitees and business invitees. A public invitee is a guest who is present on property that is generally open to the public for non-business reasons. A visitor at a public park is an example of a public invitee. A business invitee, on the other hand, is someone who is present on another’s property for some business purpose. A common example of a business invitee is a customer at a grocery store. Business invitees and public invitees are both owed the same duty by landowners. However, a public invitee may need to deal with sovereign immunity issues when pursuing a claim for compensation. Of course, to successfully bring a Florida premises liability lawsuit, the injured party must be able to show that the landowner owed them a duty, and that the landowner violated that duty.

In a recent Florida court of appeals decision, a plaintiff filed a wrongful death lawsuit on behalf of the deceased against a Florida hotel and resort following a golf cart accident that resulted in the individual’s death. The defendant hotel provided a complimentary golf cart service to transport guests around its property and on its grounds. The golf cart was not allowed to travel on roads beyond the hotel grounds, but it could drop passengers off who could then cross a highway on foot.

Last month, a state appellate court issued an opinion in a Florida wrongful death case discussing the permissible scope of a liability release waiver and whether such a waiver can prevent a plaintiff from pursuing a claim of gross negligence against a defendant. Ultimately, the court concluded that the plaintiff’s case should proceed because the waiver signed by the plaintiff did not include the waiver of claims based on the defendant’s gross negligence.

The Facts of the Case

According to the court’s opinion, the plaintiff was killed when she was run over by a tow-truck on the Daytona International Speedway. Apparently, the plaintiff was standing in a restricted-access area when two employees of the raceway instructed the tow-truck driver to back the truck into the restricted area. As the truck was backing up, it ran over the plaintiff.

Before the plaintiff entered the raceway, she signed a release and waiver of liability. The waiver stated that the plaintiff agreed to “release, waive and discharge” the defendant “for any and all loss or damage” resulting in injury or death. The agreement stated that it applied to “all acts of negligence.”

Continue reading

In a recent Florida wrongful death case, the Florida Supreme Court reversed an intermediate appellate court’s decision that placed a limit on the amount of damages that a person could obtain through a wrongful death lawsuit.

The Facts

The specific facts of the case are less important than its holding. However, the case involved a wrongful death lawsuit brought by a plaintiff against a tobacco company. The plaintiff claimed that the tobacco company was responsible for her mother’s early death at the age of fifty-eight. The plaintiff was forty-two at the time of her mother’s death. There was extensive testimony regarding the closeness of the plaintiff’s relationship with her mother.

The case proceeded to trial, and the jury awarded the plaintiff $4.5 million in damages for the loss of her mother. The defendant tobacco company filed a motion with the court, asking it to reduce the damages amount, but the motion was denied. The tobacco company appealed.

Continue reading

In a long-awaited decision, Chirillo v. Granicz, the Supreme Court of Florida provided much-needed clarity on the thorny question of the liability that may extend to a psychotherapist for his or her patient’s suicide. The decision resolves conflicting rulings from two of Florida’s Courts of Appeal and provides coherent guidance to litigants wondering whether the conduct of a treating psychotherapist is actionable.

Granicz was brought by the widower of a patient who had received mental health care treatment from a primary care physician for about three years prior to her suicide. The physician began providing treatment to the patient in 2005, and in September of that year, he switched the patient’s antidepressant medication from Prozac to Effexor. In October 2008, the patient contacted the physician’s office and told a medical assistant she had ceased taking the Effexor because she believed it was causing various deleterious side effects, including difficulty sleeping and digestive problems. After reading notes on this conversation taken by the medical assistant, the physician called the patient, told her that he was changing her prescription to Lexapro, and referred her to a gastroenterologist. The physician told the plaintiff that she could obtain samples of Lexapro from the office, but he did not schedule an appointment to meet directly with the plaintiff. Some days thereafter, the patient went to the office to obtain the samples.

Continue reading

In a recent decision, Jones v. Alayon, Florida’s Fourth District Court of Appeal addressed several questions arising from trial in an auto accident negligence case. At trial, the jury found that the decedent was, in part, responsible for his death because the evidence established he had not been wearing a seatbelt at the time of the crash. Among various arguments the decedent’s estate raised on appeal was whether the trial court erred in not directing a verdict in favor of the estate on the defendant’s seatbelt defense because the undisputed evidence showed that the seatbelt was actually inoperable.

Alayon was brought by the daughter of the decedent as the personal representative of the decedent’s estate. The defendant in this case was the driver of the vehicle that rear-ended the decedent’s vehicle, which caused it to strike a guardrail and turn over. The decedent was ejected from the vehicle. The decedent died as a result of either ejection from the vehicle or being struck by other oncoming cars. The defendant was a off-duty police officer, who fled after striking the decedent’s vehicle and falsely reported that it had been stolen. At the time of the civil trial, the decedent was incarcerated on charges related to the hit-and-run. The defendant conceded liability but contended that his negligence didn’t result in the decedent’s death. Instead, the defendant argued that the decedent was comparatively negligent because he failed to wear a seatbelt.

Continue reading

When negligence regarding the administration of medication is mentioned, most people would typically think of doctors or nurses. However, other medical professionals may be liable for negligence related to the prescribing of medicine. In fact, Florida’s Fifth District of Appeal recently rendered judgment in an interesting case involving a pharmacist’s liability for the death of one of his customers.

The decision, Oleckna v. Daytona Discount Pharmacy, relates to the treatment of a now deceased patient for stress syndrome. The patient began his treatment in 2009 and received a prescription for Xanax and Hydrocodone or Oxycodone from a local physician. Over the next two years, the physician repeatedly prescribed these drugs before the date that the patient should have depleted his previous prescription. The defendant in this case, a local pharmacy, filled at least thirty of these prescriptions, even though they were prescribed closely in time. In March of 2011, the patient died due to drug intoxication of Alprazolam and Hydrocodone. The estate of the deceased brought suit against the pharmacy, alleging the pharmacy was liable for various forms of negligence associated with filling the deceased’s prescriptions. The pharmacy moved to dismiss, arguing that it could not be held liable for negligence under the circumstances. The trial court granted the motion, and the estate appealed.

Continue reading

The Supreme Court of Florida recently issued an opinion reversing a Fourth District Court of Appeal decision we cited in a previous post. The decision, Sanders v. ERP Operating Limited Partnership, examines when a defendant is entitled to a directed verdict in negligent security action.

The events leading to the Sanders case started in late 2004 when two young adults moved into an apartment complex that was marketed as a gated community. A year after they moved into the complex, the two were shot to death inside their apartment by unknown assailants. There were no signs of forced entry, but possessions including an engagement ring, cash, and credit cards had been taken. Evidence adduced during discovery showed that in the three years prior to the murders there had been two prior “violent” incidents at the gated community when the gate had been broken and criminals followed residents onto the property. During the year of these murders, the gate had been inoperable for a total of four months. One incident resulted in an armed robbery, the other in an assault. Though a governing manual provides that notice be given to residents when such acts occur, no notice was provided after these incidents.

Continue reading

We generally associate vehicular accidents with the negligence of one of the drivers, but in certain circumstances fault may be attributable to the acts or omissions of a third party. Third-party liability for a death resulting from a Pembroke Pines auto accident is the central topic in a recent decision from Florida’s Fourth District Court of Appeal, McIntosh v. Progressive Design and Engineering, Inc..

In McIntosh, the son of a deceased driver brought suit against the company that designed the traffic signal at the intersection where his father was injured. The intersection where the accident occurred is situated at the exit from a local trailer park. The traffic signal at this intersection allowed a driver exiting the trailer park to rely on a traffic signal further out in the intersection that was intended for other traffic while neglecting the closer traffic signal intended to control traffic exiting the trailer park. While the deceased person was exiting from the trailer park, he collided with a truck traveling southbound on the cross street. The signal design and interconnect plans were developed by Progressive Design and Engineering, Inc. with the input and approval of the Florida Department of Transportation. The plans were eventually approved and sent out for contractor bidding. The construction team generally constructed the intersection per Progressive’s plans. The accident occurred 15 days into the burn-in period, a warranty period when the contractor maintained the traffic signals in case a problem arose. During this period, only the Florida Department of Transportation could order necessary changes.

Continue reading

Generally, jury verdicts are rarely disturbed. Unless there is a grievous error that likely had a material impact on the judgment reached, judges will neither issue a ruling notwithstanding the verdict nor order a new trial. This aversion to modifying judgment was illustrated in a recent decision from Florida’s Fifth District Court of Appeal, Weissman v. Radiology Associates of Ocala, P.A., which involved the propriety of a trial court’s order for a new trial in a wrongful death case that had resulted in a jury verdict in favor of the plaintiff.

Weissman concerned an alleged act of medical negligence leading to the wrongful death of a patient. Following the patient’s death, the representative for the deceased plaintiff brought suit against Radiology Associates of Ocala and personnel. After a trial, the jury returned a verdict in favor of the plaintiff. Thereafter, the defendants performed a background investigation on the jurors and filed a motion for the court to conduct juror interviews, alleging that there existed material non-disclosures among several of the jurors. The court performed these interviews and then granted the defendants’ separate motion for a new trial, having found that three jurors had indeed failed to make material disclosures during voir dire questioning. The plaintiff then brought an appeal.

Continue reading

Contact Information