South Florida Injury Attorneys Blog

May 27, 2015

Fourth District Court of Appeal Rules in Florida Injured Construction Worker Suit

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Workplace injuries are an everyday occurrence. However, injuries in certain workplaces create more legal complications than others. For example, construction activities at a single site are not typically performed by a single entity. Instead, the realization of a construction project often involves the overlapping work of a general contractor and numerous subcontractors. Thus, when a worker is injured, there is often difficulty ascertaining which entities are at fault and, subsequently, what forms of immunity, if any, may apply to their negligence. The dynamics of construction site workplace liability was the subject of a recent decision of Florida’s Fourth District Court of Appeal, Ciceron v. Sunbelt Rentals, Inc.

The plaintiff in Ciceron was an employee of a subcontractor that had been enlisted by the general contractor to perform demolition work as part of the renovation of a large retail store. The general contractor had also recruited electrical subcontracting and wielding subcontracting services. The defendant, Sunbelt Rentals, Inc., rented scissor lifts to the electrical subcontractor and the wielding subcontractor per a separate rental agreement. On the day of his accident, the plaintiff in this case was working at the construction site. One of the scissor lifts became inoperable. A Sunbelt employee came to the site to remove the lift but encountered difficulty loading the lift onto a truck. The Sunbelt employee asked the plaintiff and several of his coworkers for assistance with the task. The Sunbelt employee instructed them on how to position the lift, but during the course of loading the plaintiff suffered severe bodily injuries that ultimately resulted in the amputation of his leg. The plaintiff brought suit against Sunbelt, asserting various theories of negligence and loss of consortium. Following discovery, Sunbelt moved for summary judgment, arguing that the plaintiff had already received workers’ compensation benefits for his injuries and that the claims were barred by horizontal immunity under Florida’s Workers’ Compensation Laws. The trial court granted the motion for summary judgment, and the plaintiff appealed.

May 20, 2015

Does Wearing High Heels in Florida Make An Individual Partially Negligent for a Fall?

by Frankl Kominsky Injury Lawyers

Florida is a comparative negligence state, see Section 768.81 Florida Statutes, which means that if a plaintiff’s negligence contributed to his or her injury, recovery can be offset to reflect his or her role in the harm caused. Accordingly, defendants in negligence suits will often argue that certain acts of the plaintiff contributed to the injury. However, to succeed in offsetting liability, the defendant must still prove that the contributory conduct was actually negligent. The Fifth District Court of Appeal recently addressed the dynamics of comparative negligence in its decision in Bongiorno v. Americorp, Inc.

The plaintiff in Bongiorno slipped on what she described as an unusually slippery bathroom floor in the office building where she worked. She brought a negligence suit against the property owner, arguing that negligence in maintaining the floor caused her fall. Among the affirmative defenses asserted by the defendant was comparative negligence. The evidence shows that the plaintiff was wearing four to five inch high heels at the time she fell. The case proceeded to a bench trial, after which the judge concluded both the property owner and the plaintiff were 50 percent liable for the fall. The judge found the plaintiff’s choice to wear heels of that height contributed to her fall. The plaintiff appealed to the Fifth District, arguing that there was insufficient evidence in the record to show that she was negligent for wearing high heels to work.

May 13, 2015

Florida Third District Court of Appeal Addresses Liability for Subcontractor Employee Injuries

by Frankl Kominsky Injury Lawyers

In 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.

May 6, 2015

Florida Fourth District Court of Appeal Addresses Seatbelt Comparative Negligence Defense

by Frankl Kominsky Injury Lawyers

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.

April 29, 2015

Trek Bicycle Corporation v. Miguelez: A Look at Failure to Warn in Florida

by Frankl Kominsky Injury Lawyers

It is common knowledge that the manufacturer of a product may be held liable for injuries arising from that product’s faulty design or construction. However, many are unaware the manufacturer may, in certain circumstances, be held liable for certain risks its product poses, even if the risks fall short of being a design defect. The issue of when a manufacturer needs to provide warning to a consumer was recently addressed in Trek Bicycle Corporation v. Miguelez, a recent decision from Florida’s Third District Court of Appeals.

The plaintiff in this case was riding a bicycle manufactured by Trek Bicycle Corporation along the Rickenbacker Causeway in Miami when the bicycle abruptly stopped. As a result, the plaintiff was jolted onto the handlebars and then to the ground of the causeway. The plaintiff sustained various face, jaw, and shoulder injuries. An examination of the bicycle revealed that an object had become lodged in the front wheel. Consequently, the object had hit the back side of the front carbon fiber forks of the bike, which caused the wheel to stop abruptly. The plaintiff brought suit against Trek as well as the retailer from which he purchased the bike. He asserted various product liability claims, including defective manufacture and defective design of the carbon forks. In addition, he brought a negligence claim predicated on the defendants’ failure to warn about the characteristics of the carbon fiber that created an added risk of wheel stoppage. The trial court granted the defendants’ motion for a directed verdict on the product liability claims, but it declined to grant the motion for a directed verdict on the failure to warn claim. Following the conclusion of the trial, the jury returned a verdict in the plaintiff’s favor on the failure to warn claim. The jury only found Trek liable for failure to warn and awarded 800,000 dollars in damages.

April 22, 2015

Third District Court of Appeal Affirms in Florida Arbitration Clause Dispute

by Frankl Kominsky Injury Lawyers

Arbitration clauses are a common part of many types of contracts, from employment agreements to recreational waivers. Although arbitration is quite popular, at least among contract drafters, agreeing to arbitrate often means relinquishing many important procedural and substantive rights associated with formal legal proceedings. Since many are unaware of the implications of arbitration at the moment of contract formation, courts frequently are called upon to determine the enforceability of these clauses. Fortunately for many hapless prospective litigants, not all such clauses are valid. For instance, the Third District of Appeal affirmed a Miami trial court’s denial of arbitration in Club Mediterranee, SA v. Fitzpatrick.

The plaintiff in Fitzpatrick worked as a costume designer at a Club Med in the Bahamas. While sleeping in an employer-provided dormitory room on the resort, the plaintiff was allegedly attacked by an unknown assailant. Following the alleged attack, the plaintiff brought suit against Club Mediterranee (Bahamas), Ltd. and several parent and affiliate corporate entitles. The defendants made a motion to either compel arbitration or, alternatively, for dismissal on the ground of forum non conveniens. The trial court denied the motion in its entirety, and the defendants appealed the decision.

April 15, 2015

Florida Court Constrains Scope of Employer Relationship in Vicarious Liability Suit

by Frankl Kominsky Injury Lawyers

An issue that often arises when an employee harms another during the course of his job is whether the employer can be held vicariously liable for the employee’s act. Indeed, proving vicarious liability is often necessary for assuring that one can acquire full recovery for his injuries, since many employees are “judgment proof, ” meaning financially incapable of paying the opposing party’s judgment. Given the importance of vicarious liability, many plaintiffs attempt to stretch the meaning of employer. For instance, the Fifth District Court of Appeal recently addressed the scope of who could be deemed an “employer” under a local trucking law in its decision in Peninsula Logistics, Inc. v. Erb (PDF-embedded link).

This Erb litigation was born from a collision between a vehicle owned by the plaintiffs and a semi-truck owned by O & L Transport. At the time of the accident, the driver of the truck was transporting cargo for Peninsula in a trailer owned by a different entity. Following the collision, the plaintiffs brought suit against several defendants, including Peninsula. Although the driver was not directly employed by Peninsula, the plaintiffs argued that Peninsula could nonetheless be held liable because Peninsula fell within the definition of an employer under a pertinent trucking regulation. Eventually, the case went to trial, which resulted in a favorable verdict for the plaintiffs. Peninsula brought an appeal, arguing that it could not be considered an employer as a matter of law, and therefore the trial court erred in not granting its motion for a directed verdict.

April 8, 2015

Fourth District Court of Appeal Examines Negligence Per Se in South Florida Tree Trimmer’s Death

by Frankl Kominsky Injury Lawyers

Many jobs come with inherent risks, and although safety precautions often help prevent those risks from materializing into actual harm, precaution is occasionally insufficient. In a recent case, Vitrano v. Florida Power & Light Co., the Fourth District Court of Appeal looked at the passing of a tree trimmer who died from an inadvertent electrocution. Specifically, the Court had to determine whether the trial court had erred in denying the plaintiff’s request for a negligence per se jury instruction in a trial against the power company.

The decedent in this case was hired to trim the tree outside a South Florida home. A few days prior to the date the homeowner enlisted the decedent to trim his trees, a Florida Power & Light (“FPL”) representative had visited the homeowner’s abode and observed that the palm fronds on the homeowner’s tree were too close to the power lines. The representative told the homeowner of the issue and told the homeowner that FPL would arrange to have the trees trimmed. The homeowner declined the offer because he had already intended to have the trees trimmed. The representative, however, did not tell the homeowner that the tree nearest the line presented the greatest risk and that the homeowner should not have that tree trimmed. In addition, FPL did not provide a guard for the power line. Shortly thereafter, the decedent and his employees came to the homeowner’s home to perform the trimming work. The decedent started to climb the ladder, which a helper steadied at its base. The helper testified that a short time afterward he heard what sounded to be an electrical sound and saw the decedent fall from the ladder to the ground. He further testified that the palm fronds nearest the power lines seemed to be burned and appeared to be directly in contact with the power line. The decedent died as a result of the shock or his fall.

March 25, 2015

Fifth District Court of Appeal Reverses in Negligent Prescribing Case

by Frankl Kominsky Injury Lawyers

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.

March 18, 2015

Florida Third District Court of Appeal Limits Access to Plaintiff’s Expert Witness

by Frankl Kominsky Injury Lawyers

During the discovery process, the sharing of information is considered normal, if not the entire purpose of the endeavor. Indeed, the exchange of evidence often promotes bringing the truth to light efficiently or, at the very least, narrowing the issues in contention. However, some information remains beyond the scope of this liberal sharing process, and litigants will often fight vigorously to preserve the information over which they still have an entitlement to privacy. This situation arose in a recent case that was appealed to Florida’s Third District Court of Appeal, Bailey v. Miami-Dade County.

Bailey arose from an alleged act of negligence at Mt. Sinai Medical Center, involving Miami-Dade Fire Rescue employees and Mt. Sinai staff who dropped a patient who had suffered cardiac arrest aboard a cruise ship from a gurney. The patient later died, and her husband brought a wrongful death action against Mt. Sinai, alleging medical negligence and ordinary negligence. After commencing the action, the complaint was amended to include a count of ordinary negligence against Miami-Dade County. Prior to filing this action, the plaintiff retained a physician to prepare a medical affidavit, which is required for all actions involving medical negligence in Florida. During the discovery process, the physician’s name was disclosed to the defendants on expert interrogatories. The existence of the physician’s affidavit was also disclosed, but the plaintiff refused to proffer the affidavit, asserting work product privilege. Shortly thereafter, Mount Sinai settled, leaving Miami-Dade as the only defendant and ordinary negligence as the sole claim. When the trial court issued an order directing the parties to submit their witness lists, the physician’s name was not listed on the expert witness disclosure list, even though he had been listed as a expert who would testify on the earlier expert interrogatories. The defendant immediately sought to depose the physician, and the plaintiff refused, again citing work product privilege. The plaintiff sought a protective order, but the trial court denied the request, leading to the current appeal.