Fort Myers injury attorney

Brewer v. State Farm Mutual Auto Ins. Co. – “Excessive” Punitive Damages

May 20, 2016 | Associates and Bruce L. Scheiner

Punitive damages can be awarded in Florida personal injury and wrongful death lawsuits in which a defendant acted with gross negligence or intentional misconduct. The definitions of these terms are set forth in F.S. 768.72.

But while punitive damages may substantially increase the amount of a certain damage award, the Fourteenth Amendment blocks these awards from being “grossly excessive.” But what does that mean? There is no dollar figure that establishes what is “grossly excessive,” which means the courts have to interpret legislative intent and rely on prior case law.

One Florida injury case where this became necessary was State Farm Mutual Auto Insurance Company v. Brewer, recently before the Florida’s Second District Court of Appeals. In this case, defendant and his insurer sought review of a final judgment entered in favor of plaintiffs in an injury case arising out of an automobile accident. The court affirmed judgment in favor of plaintiffs as well as the compensatory damages awarded. However, with regard to punitive damages, the court ruled the award was excessive to the point of being unconstitutional. For this reason, the court reversed and remanded for further proceedings. Continue reading ›

Report: Florida Fatal Van Crash Driver Impaired by Antihistamine

May 8, 2016 | Associates and Bruce L. Scheiner

Little more than a year ago, the driver of a van full of churchgoers ran a stop sign and crashed in a shallow body of water off a Florida highway in Glades County, killing eight of the 18 passengers inside.

Now, authorities say the driver may have been impaired by over-the-counter antihistamines. Investigators with the National Transportation Safety Board (NTSB) weren’t able to uncover much information about the amount of sleep the driver had prior to the van crash in March 2015, so determining whether that was a factor was difficult. However, drug and alcohol testing on the driver did not reveal the presence of any other potentially impairing substances.

We do know that the passenger van lacked seat belts (only the driver and front seat passenger were belted in), the vehicle was overloaded and it was late at night. The passengers were members of the Fort Pierce Independent Haitian Assembly of God and were on their back from a Palm Sunday celebration at a sister church in Lee County, the Eglise de Dieu La Jerusalem Celeste. Continue reading ›

Wrongful Death in Motor Coach Crash

March 8, 2016 | Associates and Bruce L. Scheiner

Motor coach accidents are an area of concern for traffic safety experts and the public nationwide. In recent years, there have been a number of horrific motor coach and charter bus crashes, which have led to calls for greater regulatory action.

Just this year in California, two women, ages 51 and 76, were killed in San Jose when a Greyhound bus flipped on its side during a rainy morning commute. The women were thrown from the windows of the bus. The 58-year-old driver was reportedly “fatigued” prior to the crash. And late last year in Virginia, dozens of college students were hospitalized after a charter bus overturned when transported students back to campus. The operator was later charged with reckless driving for taking the ramp too quickly.

The Federal Motor Carrier Safety Administration (FMCSA) is the agency in charge of regulating motor carriers. That includes identifying those that may be unsafe and taking corrective action. But what if the regulators don’t act fast enough to stop a dangerous carrier? Can you sue the federal government? Continue reading ›

Sangaray v. West River Assocs. – Sidewalk Injury Liability

February 25, 2016 | Associates and Bruce L. Scheiner

Sidewalks are intended to be a place where pedestrians can safely traverse without fear of stepping into the path of an oncoming car or bicyclist.

But there are still hazards. Vehicles backing out. Vehicles careening off the road. Beyond that, the walking surface itself has the potential to be dangerous if it is not kept in acceptable condition, with tree roots or other defects resulting in cracks, uneven surfaces and protrusions.

In the event a Fort Myers sidewalk fall results in injury, plaintiffs may have a couple options. The first is to ascertain whose responsibility it was to maintain the sidewalk. Continue reading ›

Wuthrich v. King County – Duty of Government to Control Vegetation

February 19, 2016 | Associates and Bruce L. Scheiner

You approach an intersection and stop at a stop sign. You try to look both ways, but there is a huge bush in your away. You inch forward and still don’t see anyone, so decide to proceed. BAM! A motorcycle seemingly blasts out of nowhere and strikes your rear driver’s side door.

This is what happened to one of the defendants in Withruch v. King County, a case recently before the Washington State Supreme Court.

Central to this case was whether the county could be held at least partially liable for injuries to the motorcyclist for failure to ensure site lines at the intersection were clear. We know that a municipality’s duty to maintain roads in a reasonably safe condition for ordinary travel isn’t limited to the asphalt. So if there is vegetation by the road that is blocking one driver’s view of oncoming traffic, that is a situation where reasonable action is needed to remedy the problem. Continue reading ›

Richmond v. Volk – Misnomer vs. Misjoinder in Personal Injury Lawsuit

February 18, 2016 | Associates and Bruce L. Scheiner

In any personal injury lawsuit, it’s imperative that plaintiff identify all relevant defendants to the claim and then properly name those individuals in the lawsuit.

It seems like a fairly standard, straightforward directive. But a simple typo can have serious consequences to a case, and plaintiffs need to know their attorneys have adequate experience and staff necessary to ensure such a mistake doesn’t happen.

Recently, this issue was before the Virginia Supreme Court in the matter of Richmond v. Volk. Continue reading ›

Cisson v. C.R. Bard – Court Affirms $2M Verdict

February 14, 2016 | Associates and Bruce L. Scheiner

The U.S. Court of Appeals for the Fourth Circuit upheld a $2 million verdict in Cisson v. C.R. Bard in favor of a plaintiff who had to undergo painful revision surgery due to a faulty transvaginal mesh implant.

Unfortunately, a significant portion of that damage award will go straight to the state of Georgia, and not to the plaintiff. The reason has to do with the fact that state has a provision entitling taxpayers to 75 percent of whatever is recovered through punitive damages. In this case, $1.75 million of the damage award was for punitive damages, while $250,000 was for compensatory damages.

(Punitive damages are those which are intended to punish the defendant, while compensatory damages are intended to compensate the victim for actual losses.) Continue reading ›

Espinoza v. Arkansas Valley Adventures – Tourist Injury Lawsuit

February 12, 2016 | Associates and Bruce L. Scheiner

Fort Myers is a tourist destination, and those engaging in an array of outdoor activities – kayaking, parasailing, waterskiing, skydiving, boating, hiking, bicycling and more – are taking on some level of inherent risk.

When these trips are part of organized events, participants assume a degree of risk by choosing to be involved. Legally, this is called “assumption of risk.” However, this does not absolve companies from taking reasonable measures to keep customers safe. That involves abiding industry standards as well as local laws and regulations.

When a person is injured in these type of activities, it’s important for tourists to consult with a local personal injury attorney, familiar with Florida civil law. Continue reading ›

Florida’s No Fault Car Insurance System to End?

January 15, 2016 | Associates and Bruce L. Scheiner

For 40 years, Florida drivers have been compelled to purchase Personal Injury Protection auto insurance to cover a minimum of $10,000 in personal injuries occurring as a result of an auto accident – no matter who is at fault. It’s referred to as the state’s “No Fault” car insurance system. Some legislators want it gone.

Efforts to scrap PIP benefits aren’t new, of course. But they are gaining traction across the state, especially with the introduction of SB 1112, filed by state Sen. Jeff Brandes, R-St. Petersburg.

Filed quietly on Dec. 11, 2015 for consideration by the legislature in 2016, the measure would eliminate PIP and, as Brandes argues, “force policymakers to address this important issue impacting every driver in our state.” Continue reading ›

Hampton v. County of San Diego – Overcoming Design Immunity in Accident Lawsuits

January 8, 2016 | Associates and Bruce L. Scheiner

Collecting compensation for injuries sustained due to faulty highway design or construction is difficult in Florida, and it was made tougher by a law passed in 2005, codified in F.S. 337.195, limits on liability.

The statute serves to limit liability for road designers, consultants and contractors and it does so by establishing legal presumptions in their favor in civil litigation. In order to win (and it is possible to prevail), plaintiffs have a tough task of overcoming those strong presumptions in favor of defendants. Generally, it means asserting gross negligence or intentional misconduct that results in injuries or damages. It can also be circumvented when contractors fail to adhere to maintenance of traffic safety plans, as required by the government contract.

Similarly, government entities are protected by sovereign immunity laws, though those have been waived under certain circumstances. Continue reading ›