Florida Injury Lawyer Blog

Premises Liability Case Involving Injury to Young Boy Will Proceed, Court Rules

October 15, 2017 | Associates and Bruce L. Scheiner

In Florida, property owners are generally liable for dangerous conditions that are not obvious and cause harm to those who are lawfully present. There are varying degrees of a property owner’s responsibility in this area of law – known as premises liability – depending on the status of the individual who was hurt. For example, someone who is invited onto the property for the financial benefit of the property owner is owed a higher duty of care than someone who is trespassing.

In most cases, trespassers are not owed any duty of care, except that property owners can’t intentionally harm them or set traps. When it comes to children, though, the standards are different. Children are generally owed a greater duty of care than adults in the same situation, and this is true also when children are trespassing. The doctrine of attractive nuisance, for example, holds that if property owners maintain dangerous conditions likely to attract young children to the site, the property owner must be sensitive to that potential danger (which a child may not appreciate) by posting a warning or taking some other affirmative steps to protect children from that danger.

Recently in Minnesota, the state supreme court there considered property owner liability in the case where a 4-year-old boy nearly drowned in the Mississippi River and suffered severe and permanent brain damage. Continue reading ›

Court Allows Evidence of Impairment in Pedestrian Accident Case

October 12, 2017 | Associates and Bruce L. Scheiner

Pedestrian accidents occur when a person on foot, walking, running, jogging, hiking, sitting or lying down is involved in a traffic crash. That’s per the National Highway Traffic Safety Administration (NHTSA), which reports there were nearly 5,400 fatal pedestrian accidents and 70,000 injuries just in 2015 alone.

In civil liability cases involving pedestrian accidents, one question that inevitably arises is comparative fault. That is, to what extent is the person who was struck by the vehicle also to blame? The NHTSA reports alcohol involvement was a factor in nearly half of all pedestrian accidents – which includes consumption by the driver and/ or pedestrian. Our injury lawyers work to present evidence that will discredit allegations of comparative fault, or at least minimize its impact.

In Florida, F.S. 768.81 is the state’s comparative fault law. It’s plaintiff-friendly in the sense that it will allow plaintiffs to collect on damages even if they are 99 percent at-fault and defendant is just 1 percent at-fault. However, the law does proportionately reduce the amount of damages based on that percentage. So for example, if plaintiff is deemed 70 percent at-fault and defendant is 30 percent at-fault, defendant would only be liable for 30 percent of plaintiff’s damages. In many other states, plaintiffs are barred from collecting any damages if they share half or 51 percent of the blame. In a handful of states, plaintiffs are not allowed to collect damages if they are at-fault to any degree. 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 ›

Federal Appeals Court Affirms Punitive Damage Award for Nursing Home Abuse

October 7, 2017 | Associates and Bruce L. Scheiner

A federal appellate court has affirmed a $1.2 million damage award to plaintiffs whose mother was abused by two certified nursing assistant while she was a patient in a nursing home. That damage award included $10,000 in punitive damages, which are awarded in injury and wrongful death cases involving intentional misconduct or gross negligence.

These types of cases are becoming increasingly popular, particularly in Florida, as the population ages and the availability of quality care workers becomes more strained. According to court records from the U.S. Court of Appeal for the 10th Circuit, the nursing home patient lived on her own until she was 90-years-old. In 2008, her three daughters moved her into defendant’s nursing home facility. By that time, the elderly woman suffered from severe arthritis, which significantly impacted her mobility and required her to use a wheelchair. She also had difficulty communicating due to dementia.

The two CNAs in question had not worked there long by the time victim was placed in their care. Both workers had numerous write-ups in their personnel files for things like excessive tardiness, leaving the site in the middle of a shift, using a cell phone during work, failing to show up for work, falling asleep at work, refusing to complete certain assigned duties (including leaving residents in wet diapers for hours). One of the workers was recommended for immediate termination, yet she nonetheless continued working there. In fact, she was even responsible for training new CNAs regarding proper resident treatment. Continue reading ›

School Board, Teacher, Face Florida Wrongful Death Lawsuit in Teen’s Suicide

October 5, 2017 | Associates and Bruce L. Scheiner

In most Florida wrongful death lawsuits, it’s often a simple matter to link defendant (the person alleged to be legally at-fault) with the conduct that resulted in death. For example: A drunk driver swerves off the road and slams into a tree, killing a passenger. The defendant’s negligent conduct caused the passenger’s death.

It can get complicated, though, when we’re dealing with liability for a loved one’s suicide. This is where that causal link (referred to in court as “causation”) becomes difficult to prove. A person who commits suicide is the direct cause of his or her own death. But the question becomes: Was defendant’s action or inaction a substantial factor in decedent’s suicide? Courts will also ask whether decedent’s actions were reasonably foreseeable. There are no hard-and-fast rules for when a defendant may be legally liable for someone else’s suicide, but we have noticed an increase in such cases.

Recently in Wakulla County, the parents of a 15-year-old who tragically committed suicide have filed a wrongful death lawsuit against the school and one of his middle school teachers. The lawsuit alleges the teacher and the school are party to blame for the teen’s death following allegations of inappropriate contact between the teacher and the 8th-grader. 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 ›

Determining the Number of Accidents in an Injury Case

September 29, 2017 | Associates and Bruce L. Scheiner

Most auto insurance policies impose per-person or per-accident limitations. This is typically a pretty straightforward issue. However, a dispute about how many “accidents” occurred can leave a big question mark as to how much claimants are entitled to receive.

In a recent bicycle accident injury case before the Wyoming Supreme Court, plaintiffs were suing a single driver after an incident wherein they were riding bicycles together and both were struck by defendant driver operating a car. One bicyclist died and another was seriously injured. They had uninsured motorist coverage through their own carrier, which had a policy extending $300,000 in damages per accident. That would mean no matter how many claimants, the insurer would only pay out a maximum $300,000.

Plaintiffs, however, contended they were each entitled to a maximum $300,000 because there had actually been two accidents, not just one. While the trial court granted summary judgment to the insurer, the state supreme court found the record insufficient to conclude there had only been one accident. The case was remanded for further proceedings. 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 ›

Hurricane Irma Power Loss Spurs Florida Nursing Home Lawsuits

September 21, 2017 | Associates and Bruce L. Scheiner

It was to be expected following one of the biggest and most powerful storms in Florida’s history that those who stayed would be grappling with some degree of power loss in the immediate aftermath. However, one could also reasonably assume that health care providers – including nursing homes responsible for the care of elderly and vulnerable individuals – would be prepared to ensure patients’ basic needs would be met.

That reportedly did not happen at a nursing home in Hollywood Hills, according to nursing home negligence lawsuits filed recently by family members of several residents who died there under sweltering conditions following the storm and subsequent power outages.

CBS News reports a total of 10 nursing home patients died after they were kept in a facility that had essentially become a “sweatbox” in the days after Hurricane Irma. While the facility lacked air conditioning, just across the street was a fully-equipped and cooled hospital. Continue reading ›