Personal Injury

Naples Injury Lawsuit Targets Explosive E-cigarette

January 31, 2016 | Associates and Bruce L. Scheiner

A Naples man has filed a product liability lawsuit against the manufacturer of an electronic cigarette (or e-cigarette), which he said he was using normally when it literally exploded in his face. His eyebrows were burned off and flames were sent shooting into his mouth, quickly burning his throat and lungs, he says.

Emergency medical responders had to heavily sedate the 21-year-old so they could keep him breathing, as the burns on his esophagus and lungs were such that there was a serious risk of his airway being closed. As his air passages swelled, his life was in danger. The only reason he didn’t die, according to a lawsuit detailed in the Daily Business Review, is that he was intubated, meaning a machine was breathing for him.

According to the filing, the culprit in the explosion was a lithium battery. Defendant is a California company that is accused of using this volatile component without accounting for its incendiary properties or warning consumers of the potential danger it posed. Continue reading ›

Galvan v. Memorial Hermann Hosp. Sys. – Not All Hospital Injuries are Created Equal

January 14, 2016 | Associates and Bruce L. Scheiner

Lee Memorial Health System is the No. 1 employer in Lee County, with 9,500 workers in four different hospitals. Most of the injury lawsuits it faces are going to be:

Workers’ compensation claims;
Medical malpractice injuries.

There are differing proof burdens for each, and the level of evidence needed in medical malpractice cases is especially high.

However, there is a third type of claim that could arise, and it’s important to make the distinction: General negligence. That is, if the person injured wasn’t a worker or a patient and the injury didn’t stem from some violated provision of health care, it’s likely a general negligence claim. The reason it’s necessary to classify this upfront is that medical malpractice claims almost always require expert witness testimony and there are certain time limits and lawsuit notification deadlines that have to be met.

Sometimes, health care systems will argue that a claim filed as general negligence is in fact medical malpractice because they want plaintiffs to face additional hurdles. That gives defendant hospitals and health care workers more of an opportunity to prevail in their case. Continue reading ›

Metro. Prop. & Cas. Ins. Co. v. Estate of Benson – Homeowners’ Insurance and Intentional Acts of Harm

December 17, 2015 | Associates and Bruce L. Scheiner

Homeowners’ insurance is intended to provide compensation to those injured by members of the household. Usually, this coverage extends to incidents that occur in the home, on the property and sometimes out on the street (though incidents involving motor vehicles are generally excluded).

However, almost all homeowners’ insurance policies have some provision that excludes coverage for intentional acts. That is, if an insured acted with some specific intent to injure the victim, the resulting injury will not be covered under the policy. Many courts have held the intention of the insured is a question of fact for a jury, though sometimes there is substantial evidence and intent to harm (or lack thereof) is clear.

There may be some cases, however, where even intentional criminal acts could be covered. For example, if the perpetrator was acting in self-defense and used more force than was actually needed, coverage might be extended. Same for actions for which the accused lacks the mental capacity to act rationally. But it will all depend on the specific language in the policy. Continue reading ›

Yang v. Little Rock City – Death of Boy, Mother Spurs Lawsuits Alleging Poor Emergency Response

December 14, 2015 | Associates and Bruce L. Scheiner

A woman was traveling less than a mile from her home to her son’s daycare in Arkansas when her vehicle hit a patch of black ice near an intersection. She careened into a nearby pond, and immediately called 911. Frantic as she and her 5-year-old sunk deeper into the icy water, the woman waited for emergency response that would be too late for her.

It took 53 minutes from the time she placed the call until firefighters and police arrived. She was deceased when they pulled her out. Her son did survive initially, but was critically ill and suffered brain damage. He died two years later from injuries related to the crash.

His father filed two wrongful death lawsuits against the city for failed emergency response. The first case, Yang v. Little Rock City, et al., was filed in 2013 on behalf of his son. A second lawsuit with the same name, Yang v. Little Rock City of, et al., was filed this year on behalf of his wife. The lawsuits allege the long delay in the arrival of a water rescue team meant his wife and son suffered prolonged exposure to cold water, which ultimately led to their deaths. He asserts this delay was preventable, and could be attributed in large part to a single employee who was known to have serious performance issues, even before she was hired. Continue reading ›

Stahl v. Hialeah Hospital – Florida Workers’ Compensation System Challenged

December 12, 2015 | Associates and Bruce L. Scheiner

In workers’ compensation law, the exclusive remedy provision makes it clear that employers can’t be held liable in civil court for damages related to work injuries in most cases where they carry workers’ compensation insurance. Proving fault isn’t necessary in workers’ comp cases, and it’s supposed to be a trade-off: Workers get easier access to immediate benefits for wage losses and medical bills, while companies avoid the ordeal of litigation.

But as a recent series by non-profit news organization ProPublica pointed out not long ago here and here, there have been calculated and aggressive efforts to whittle away worker protections and insulate companies from liability for work injuries. This has occurred in a number of ways, including lobbying of legislation that reduces benefits or makes it harder for injured workers to get coverage in the first place.

However, there are ways in which personal injury lawyers are helping workers fight back and regain some ground on various fronts. Most recently, there is the case of Stahl v. Hialeah Hospital, which the Florida Supreme Court has agreed to review. Continue reading ›

Griffin v. Haunted Hotel, Inc. – Assumption of Risk Doctrine

December 2, 2015 | Associates and Bruce L. Scheiner

In personal injury cases, it’s essential to prove defendant owed a duty to plaintiff, that duty was breached and the breach caused the injury.

What many plaintiffs don’t realize is that they too owe a duty of care – to themselves. They have to take reasonable measures to protect themselves from known or knowable hazards, or else risk forfeiting the right to recover damages for it.

Thus, a key defense in these cases is the “assumption of risk.” The assumption of risk doctrine holds plaintiff knew of a dangerous condition and voluntarily exposed himself or herself to it.

This was the defense used in Griffin v. Haunted Hotel, Inc., before the California Court of Appeal, Fourth Appellate District, Division One. Continue reading ›

Report: 1 in 10 Elderly Suffer Some Form of Abuse

December 1, 2015 | Associates and Bruce L. Scheiner

Recently in central Florida, two certified nursing assistants were fired and arrested on charges of battery on an elderly person after footage from a hidden camera appears to show them striking an elderly Alzheimer’s patient in their care.

The 76-year-old victim’s son said he and his wife noticed the bruising on his body, but assumed it was the result of frequent falls. His father wasn’t able to communicate the truth, according to ABC 10 News. The son then placed a “nanny cam” in his father’s room. They discovered staffers taunting him, handling him roughly and even striking him.

The worst part about all this is that it’s not all that uncommon. A new study published in the latest edition of The New England Journal of Medicine indicates 1 in 10 elderly people will suffer some form of abuse in their lives. That’s a largely conservative estimate, considering it involves self-reported abuse. Many people, like the victim in the aforementioned central Florida case, can’t speak up about what’s happening to them. Diseases like Alzheimer’s and dementia rob them of the ability to recognize and articulate these wrongs, to say nothing of the fear that keeps some suffering in silence. Continue reading ›

Injury Lawsuit Against 12-Year-Old Gives Woman “Worst Aunt” Label

November 1, 2015 | Associates and Bruce L. Scheiner

It was her 8-year-old nephew’s birthday party, and he was thrilled to see her. The boy raced up excitedly to his aunt and tackled her, causing her to catch him as he jumped into her arms and she fell over. The result was a fracture of her left wrist.

Now, four years later, she has been dubbed by some media outlets and commenters as the “worse aunt” after a jury rejected the claims made in her personal injury lawsuit against her nephew, now 12, whom she alleged was negligent in his exuberant greeting.

But there is reason to stop and reconsider. This case was almost certainly not about a beloved aunt trying to collect money from a minor or his father (the boy’s mother, plaintiff’s cousin, died last year). It was an attempt to collect compensation for medical bills from a homeowner’s insurance policy. In Connecticut, as in most states, insurance companies can’t be named as defendants in an initial cause of action. The reason is because courts have found it may prejudice jurors who may more readily find against a defendant who is known to have insurance and therefore the ability to pay. Continue reading ›

Peterson v. Flare Fittings, Inc. – Post-Accident Waiver as a Release of Liability

October 29, 2015 | Associates and Bruce L. Scheiner

Liability waivers are not generally favored by Florida courts because they relieve one party of the obligation to use due care, and further shift the risk of injury to the party likely least equipped to take necessary precautions to avoid injury. For this reason, they are usually strictly construed against the party seeking to be relieved of that liability.

That said, releases of liability will be honored by the courts if it can be shown there was specific language that makes it clear the injured person fully appreciated the implications of that release.

In most of these cases, liability waivers are signed prior to a certain activity. For example, if you’ve ever ridden a rented jet ski, you probably had to sign a liability waiver. Similar releases are usually required for common Florida tourist activities like parasailing, boating or kayaking. However, most liability waivers don’t generally cover activity that occurs prior to signing that release. But that’s what defendants in Peterson v. Flare Fittings, Inc. et al. tried to do. Continue reading ›

Slora v. Sun ‘N Fun Fly-In, Inc. – Third-Party Liability Lawsuit May Proceed

September 27, 2015 | Associates and Bruce L. Scheiner

When a tornado struck at an air show in Polk County four years ago, a worker took shelter inside a security guard shack. But that shack did not provide the protection she’d hoped. It was instead lifted off the ground, overturned and tossed into a nearby ditch by the powerful storm.

The injuries she sustained were clearly compensable under workers’ compensation laws. After all, there was no dispute she had been working (as a security guard) at the time of the incident. She made a claim for – and received – workers’ compensation benefits from her employer, a security firm.

However, the question that would later arise in Slora v. Sun ‘N Fly-In, Inc. was whether the organizer of the airshow was also considered an employer. Of course, it was not her direct employer. But when the injured security guard filed a third-party liability lawsuit against the air show organizer, the company asserted it was a contractual employer. Continue reading ›