Personal Injury

The Role of Social Media in Your Florida Personal Injury Lawsuit

December 7, 2017 | Associates and Bruce L. Scheiner

In the last decade, the Pew Research Center has closely analyzed the many ways Americans use social media to interact with others and seek information. Researchers discovered that in 2016, almost 8 out of 10 Americans who are online (which is most) use Facebook, 24 percent use Twitter and a third use Pinterest, Instagram and LinkedIn. For instance, most Americans are now getting their news via social media. They are also using it at work, whether in the course of their job, to seek employment or just to take a mental break from the stress of their day.

While these platforms provide information, entertainment and interactivity, they can also have a profound impact on your personal injury case. This is increasingly true as more Americans are online. We use these sites to document our everyday experiences, so it’s natural for attorneys – on both sides – to closely examine the information available to ascertain whether it can be a benefit or a hindrance to their case. As The American Bar Association pointed out, social media posts, pictures and messages can be compelled into evidence, assuming the requesting attorney can make an argument that the information is:

Authentic;
Relevant;
More probative than prejudicial;
There is no hearsay problem.

Negotiating Hospital Liens in Cape Coral Personal Injury Lawsuits

December 4, 2017 | Associates and Bruce L. Scheiner

If you have suffered a personal injury, you may be faced with a hospital lien on whatever damages you collect from the tortfeasor (wrongdoer). Hospital lien claims typically arise when you have received some emergency care after an auto accident or slip-and-fall and you lacked insurance to fully cover your treatment for your care.

Having an attorney to help you navigate this is important because usually, the charges claimed for the lien are highly inflated – well above what a typical health insurer would pay for the same treatment. Although hospitals and health care providers do have statutory rights to impose these liens, and they may not have to reduce the amount to the extent they would for an insurer. However, your injury attorney can help you negotiate and argue for what is truly fair.

Every state has different rules for how it handles these issues, and the Tennessee Supreme Court was recently faced with answering whether “reasonable charges” are the discounted amounts hospitals accept as full payment to the insurer or if it is the full, undiscounted bill sent to patients. Continue reading ›

Court Rules Home Inspector Not Liable for Home Defects Resulting in Injury

December 2, 2017 | Associates and Bruce L. Scheiner

Anytime you purchase property in Florida, an inspection by a licensed, certified home inspector is typically part of the process. F.S. 468 Part XV covers home inspector requirements. Home inspectors are called upon to closely examine the structure and property and identify potential material defects. But what if they miss something that ends up resulting in personal injury? Will you have a claim?

The answer is not a simple one, and will depend on the language on the home inspector contract (whether the contractor limited his/ her own liability), as well as the duty of care owed to the person filing the claim.

The question in a recent premises liability lawsuit out of Tennessee was whether a home inspector was liable to a third party who suffered personal injury on a someone else’s property due to a construction defect. Continue reading ›

Is Anyone Liable After Mass Shootings?

November 15, 2017 | Associates and Bruce L. Scheiner

It seems every other week, another mass shooting is in the headlines. No matter where you stand on the contentious gun control issue, pretty much everyone can agree these incidents are tragic. They leave families not only bereft, but often drowning financially. Those we lose are often people in their prime, wage-earners who help support their families. Those who survive may incur astronomical medical bills and endure months-long recovery or lifelong disability.

But aside from the shooters in these incidents, is there anyone really to blame? The gunmen in these cases (and they are almost always men) often commit suicide or are killed. If they do survive, their punishment will be handled within the criminal justice system. That case could be accompanied with an order of restitution, but it’s often not nearly enough to cover the damages of so many – and that assumes defendant would ever be able to pay it. Unlike a car accident or a dog bite or slip-and-fall at a store, intentional acts of violence are generally not covered by insurance companies. It’s an almost universal exclusion.

Pretty much the only way victims of crime can seek compensation is through third-party liability, usually on the theory of premises liability. This theory holds that property owners knew or should have reasonably foreseen the risk of such a violent act and taken reasonable steps to prevent it. Continue reading ›

Florida Supreme Court: Stand Your Ground Immunity in Criminal Case Does Not Confer to Civil Liability Immunity

October 9, 2017 | Associates and Bruce L. Scheiner

In a legal battle stemming from a barroom brawl in South Florida, the Florida Supreme Court marked a clear line between using the state’s “stand your ground” self-defense statute in criminal cases versus in civil trials.

The court ruled that while state law does allow stand your ground immunity in both criminal and civil cases, the determination of of immunity in a criminal case doesn’t automatically transfer over to a civil case. That means someone could be deemed immune in a criminal trial, yet still be held liable for damages in a separate civil trial.

Back in 2008 at a nightclub in Tampa, defendant struck plaintiff with a cocktail glass after plaintiff allegedly attacked defendant without provocation. Permanent damage was done to plaintiff’s eye. When criminal charges were filed defendant, he was able to successfully shield himself from conviction on a felony battery charge with an argument of self-defense under stand your ground. However, plaintiff then filed a civil lawsuit against defendant. Continue reading ›

Punitive Damages Are Not a Given in Florida, Even Where Liability is Found

October 2, 2017 | Associates and Bruce L. Scheiner

Two recent Florida court cases have affirmed punitive damages awarded in product liability litigation. One of those involved a $12.3 million punitive damage award against a tobacco company in a smoking-related death (that was a decision by the 2nd District Court of Appeal) and another involves $22.5 million punitive damage award against the same company in a different smoking-related death (about which the Florida Supreme Court declined to hear defendant’s appeal on a claim of the award being unconstitutionally excessive).

Punitive damages, as outlined in F.S. 768.73, are those that are awarded to punish the defendant, rather than simply compensate the victim for losses (which the purpose of compensatory damages). Punitive damages are awarded in addition to one’s actual damages, but only in certain circumstances. It is by no means a given.

According to a 2002 study by researchers at Cornell University, punitive damages are awarded at 3.5 percent of jury trials won by plaintiffs and 5.3 percent of bench trials (before a judge) won by plaintiffs. The highest rate of punitive damage awards occurs (as in these tobacco litigation cases), where an individual sues a large corporation in a bench trial. Under those circumstances, 6.7 percent of plaintiffs are awarded punitive damages. Cases involving fraud and intentional tort were the most likely to result in an award of punitive damages. Continue reading ›

Court: Bankruptcy Of Negligent Driver Doesn’t Absolve UIM Insurer of Liability

September 26, 2017 | Associates and Bruce L. Scheiner

The bankruptcy of a negligent driver who caused injury to a husband and wife may prevent plaintiffs from actually seeking damages against the defendant, but it doesn’t shield the auto insurer from having to pay out.

That was the ruling of the Alabama Supreme Court in a recent case involving two car accident claimants. Although this is an out-of-state case, it deals with matters that could just as easily arise in Florida, and justices often consider rulings by sister courts that have weighed similar issues.

To understand the court’s ruling, we must first explain a bit about U.S. Bankruptcy Code and how it impacts personal injury claims. A Chapter 7 bankruptcy in particular involves a trustee who gathers and sells a debtor’s nonexempt assets and uses the proceeds to pay creditors in accordance with the provisions of bankruptcy law. Part of the debtor’s property may be subject to liens that can be paid to creditors. Continue reading ›

Award of Attorney Fees After Rejected Settlement in Injury Lawsuit

September 24, 2017 | Associates and Bruce L. Scheiner

Your personal injury attorney must carefully consider any offer of pre-trial settlement by the defense in a civil case to better your chances you won’t run afoul of F.S. 768.79 at the conclusion of trial. The very first section of this statute stipulates that if a defendant files an offer of settlement that is not accepted by plaintiff within 30 days, defendant is entitled to “reasonable costs and attorney’s fees” incurred if the final judgment is that defendant was not liable OR the judgment obtained is at least 25 percent less than the original pre-trial settlement offer.

Obviously, there is no way to know for sure how a case is going to be decided or how much a plaintiff may be awarded in a successful case. That makes turning down settlement offers a risk. This is why having a personal injury lawyer with extensive local pre-trial negotiation and trial experience is invaluable. Knowing how such cases have gone in this same jurisdiction or in front of this same judge in the past is important to your case.

An example of this was recently weighed by the Alaska Supreme Court in Whittenton v. Peter Pan Seafoods, Inc. This was a truck accident case alleging vicarious liability of the negligent truck driver’s employer. The question was whether defendant’s offer of settlement prior to trial entitled defendant to collect attorney’s fees – even though plaintiff had won. Continue reading ›

Explaining the Concept of “Negligence” in Florida Personal Injury Cases

September 19, 2017 | Associates and Bruce L. Scheiner

There are three basic types of civil liability (legal responsibility) in Florida personal injury cases:

Negligence
Intentional Torts
Strict Liability

Intentional torts are those that involve actions like assault and battery – some kind of intentional action that caused physical harm to someone else. Strict liability most typically arises in product liability cases, and involves a legal responsibility – even though there was no actual negligence or intent to do harm. Rather, it is simply by the design/ production/ distribution of a defective product that caused harm that a defendant can be liable.

By far, most personal injury claims and lawsuits involve a claim of negligence. This is usually what is alleged in cases involving car accidents, slip-and-falls and medical malpractice. Negligence is an unintentional act or inaction (by someone who had a duty or obligation to conform to a certain standard of conduct) that resulted in injury to another person. Continue reading ›

Overcoming Assumption of Risk in Florida Personal Injury Lawsuits

August 16, 2017 | Associates and Bruce L. Scheiner

When a personal injury occurs in the course of an activity the injured person knew was dangerous, the court may shoot down claims of liability, citing the assumption of risk doctrine. However, Florida courts (specifically within the 1983 ruling of Kuehner v. Green) have historically limited successful use of the assumption of risk doctrine to cases involving:

Contracts not to sue (i.e., liability waivers);
Injuries arising out of contact sports.

Florida courts have held that rather than preventing a plaintiff from proceeding with a lawsuit at the outset, jurors should be allowed to decide whether plaintiff’s assumption of the risks should be factored into whether plaintiff was fully or partially at-fault for the the accident that resulted in injuries. Continue reading ›