South Florida Personal Injury Lawyers Blog

Florida Appeals Court Affirms Lower Court Decision in Premise Liability Case, Ruling Against Injured Worker

Published on: April 30, 2024 | by Friedman, Rodman & Frank, P.A.

In a recent case, the District Court of Appeal of the State of Florida Third District issued an opinion in an appeal in a premise liability case between a worker, Raul Arias, who was injured at his place of employment, Excel Converting, Inc., and Codealtex, LLC, the company that leases the property to Excel. Appellant Raul Arias was injured while operating machinery at Excel and subsequently sued Codealtex, alleging it had a duty to maintain the premises and the machinery that he was injured by.

Excel leased the premises where Arias was injured from Codealtex. Arias sued Codealtex, alleging it had a duty to maintain the premises and specifically the machinery on which he was injured. Codealtex moved for summary judgment, which the trial court granted. Arias timely appealed. The appeals court decision emphasized control of the property, finding that “once a landlord delivers possession and control of the leased premises . . . to the tenant, the landlord is not liable for injury to the property or person of the tenant or those on the premises with the permission of the tenant.” As a result, the appellate court affirmed the lower court decision, upholding the summary judgment ruling.

While the open and obvious doctrine can prevent plaintiffs from successfully holding landowners fully accountable for injuries in Florida, there are other ways to make sure injured parties are properly compensated. Florida landowners are still required to maintain their land and the premises in a safe condition. The courts of Florida have ruled that landowners can still be at fault for failing to maintain safe premises, even if an obvious or open danger means they do not need to warn others. Specifically, even in circumstances that are open or obvious, property owners should anticipate that people on the property will encounter the hazard, and subsequently can be found negligent for failing to maintain the premises safely. In such a situation, the plaintiff may be found to have contributed to their own injury, but the landowner can still be apportioned blame.

Hit-And-Run Crash Leaves Pedestrian Dead in Little Havana, Miami

Published on: April 23, 2024 | by Friedman, Rodman & Frank, P.A.

Unfortunately, Florida is often ranked very high on the list of states with the highest number of hit-and-run accidents each year. Through August of 2022, Florida had already reported 52,791 hit-and-run car accidents throughout the state. Additionally, hit-and-run accidents resulted in 11,494 reported injuries and 119 fatalities in Florida in 2022. There are many reasons why a driver may flee the scene after an accident. The primary motivating factor is likely that the driver wants to avoid the legal or financial consequences of the accident. Depending on the cause of the crash, drugs, alcohol, outstanding warrants, texting, or distracted driving, there could be serious legal ramifications, leading to the driver leaving the scene. Other reasons, such as lacking proper insurance, holding a commercial driver’s license, or driving the vehicle without permission, could result in significant financial consequences for the driver, leading them to flee the scene.

Florida drivers and pedestrians should be aware of some of the elements involved in calculating pain and suffering damages after an accident. Such factors can be used to determine the value and compensation in court after a crash or auto accident. (1) the type of injury and seriousness of the harm, (2) the amount of recovery time required, and (3) the necessary treatment required by the injury. These issues are related to each other. For example, generally speaking, if your injury is more serious, the recovery time and treatment required will be more elaborate, and will often result in greater compensation. Subsequently, if your injury is relatively minor and there is not a ton of pain associated with it, any damages awarded may be on the lower end. A recent news article discussed a fatal Miami hit-and-run crash.

According to the news article, Miami police are investigating a fatal hit-and-run crash that occurred on the evening of Tuesday, March, 12, around 8:39 pm. According to police, the crash involved a car and a pedestrian in the area of Southwest Eighth Avenue and Eighth Street in the city’s Little Havana neighborhood. Police said officers arrived at the scene and found a man who had been struck by a car. Miami Fire Rescue personnel transported him to Jackson Memorial Hospital’s Ryder Trauma Center, where he later died. According to authorities, the victim was crossing Eighth Street, from north to south, at Eighth Court. Police said the driver would not have been cited since the victim wasn’t supposed to be crossing in that area, but the driver chose to flee the scene and will be criminally charged if found.

Florida Appeals Court Reverses Lower Court Decision in Medical Negligence Case

Published on: April 17, 2024 | by Friedman, Rodman & Frank, P.A.

In a recent case, the Second District Court of Appeals in Florida issued an opinion in an appeal involving a dispute between a patient, Michael Barber, and a hospital, Manatee Memorial Hospital. Barber challenged the trial court’s final summary judgment entered in favor of Manatee Memorial Hospital in Barber’s medical negligence action against the hospital. Barber sustained bilateral hip fractures while unconscious in the Manatee Memorial intensive care unit (ICU), where he was being treated for a drug overdose. Barber’s appeal involved the application of the doctrine of res ipsa loquitur to his medical negligence action. The appellate court concluded based on the facts of the case that Barber was entitled to assert res ipsa loquitur in his case and that the application of the doctrine created a genuine dispute of material facts as to whether Barber’s unexplained bilateral hip fractures were the result of Manatee Memorial’s negligence.

Facts of the Case

On September 23, 2017, Barber, who was thirty-six years old at the time, attempted to end his life by taking four different prescription medications while at home. Fortunately, he had a change of heart and called 911. When emergency medical technicians (EMTs) responded, they found Barber in his garage pacing back and forth and smoking a cigarette. During the EMTs’ assessment, Barber began to have “seizure like activity,” but according to the Manatee County Emergency Medical Services (EMS) patient record, the seizure activity lasted less than thirty seconds and Barber had “purposeful movement during [the] event.” Barber was taken to the emergency department at Manatee Memorial. While there, Barber submitted to a psychiatric consultation. The notes from that consultation indicate that “[patient] walked from stretcher to ER stretcher.” Dr. Ghobrial’s Hospital History and Physical Report repeats that fact. The emergency department notes do not contain any indication that Barber complained of pain of any kind but do specifically state that the results of a musculoskeletal exam showed a normal range of motion, which a Manatee Memorial nurse testified at deposition referred to both upper and lower extremities.

Florida Appeals Court Affirms Lower Court Decision in Premise Liability Case, Denying Directed Verdict Claim

Published on: April 7, 2024 | by Friedman, Rodman & Frank, P.A.

In a recent case, the District Court of Appeal of the State of Florida Fifth District issued an opinion in an appeal in a slip and fall case between Dollar General, the defendant, and Kimberly Doty, the plaintiff and customer of the store. The suit resulted from an incident where the plaintiff slipped and fell as she entered the Dollar General store.

On July 3, 2017, a Dollar General store in Port Orange displayed seasonal merchandise in two “U-boats”—carts shaped like hotel baggage carriers—outside the store’s entrance. When it started raining that afternoon, Dollar General employee Barbara Ralph moved the U-boats indoors and placed a wet floor sign nearby. When the rain stopped, Dollar General employee Robert Boarder put the U-boats back outside and moved the wet floor sign. Moments later, Kimberly Doty entered the store. She made it a few steps inside before she slipped and fell. She later sued Dollar General for negligence, alleging that “a puddle of water near the main entrance” caused her to fall.

At trial, Dollar General moved for a directed verdict, claiming there was no evidence that it knew about the water on the floor that Doty slipped on. The trial court denied the motion. The court suggested that Dollar General’s arguments were aimed at the weight rather than the sufficiency of the evidence presented and reasoned that it is the role of the jury to weigh the incident report collectively with all the other case evidence. Ultimately, the jury found Dollar General liable for Doty’s fall. Dollar General moved to set aside the verdict and enter judgment for Dollar General, claiming again that there was no evidence showing that it knew about the water on the floor. The trial court denied the motion, and Dollar General appealed, again maintaining the evidence warranted a directed defense verdict.

Florida Appellate Court Affirms ALJ Opinion in Oxygen Deprivation Birth Case, Denying Benefits

Published on: March 31, 2024 | by Friedman, Rodman & Frank, P.A.

Recently, the district court of appeals for the State of Florida Fifth District issued an opinion in an appeal involving a claim by the Appellant, Nekeisha Wilson, who petitioned for benefits from the Appellee, the Florida Birth Related Neurological Injury Compensation Association (“NICA”). Ms. Wilson and NICA agreed that the Appellant’s daughter experienced “some degree of birth-related oxygen deprivation,” but disagreed about whether the oxygen deprivation caused a brain injury that rendered the child permanently and substantially impaired. The parties stipulated that the sole legal issue for the Administrative Law Judge’s (ALJ) adjudication was whether the child “suffered a birth-related neurological injury” as defined by section 766.302(2), Florida Statutes.

Facts of the Case

The Appellant petitioned for benefits from NICA. NICA determined that the Appellant’s claim was not compensable, and the case proceeded to a hearing before ALJ. Each side presented expert deposition testimony concerning the disputed facts before an ALJ. The ALJ’s final order evaluated this testimony and the rest of the evidence, including the child’s medical records, in detail. Based on her evaluation of the evidence, the ALJ found that the child “suffered oxygen deprivation during the course of labor, delivery, and the post-delivery period.” However, the ALJ did not find that this oxygen deprivation caused a brain injury—let alone one that resulted in the child’s permanent and substantial impairment. Because the ALJ did not find the existence of a “birth related neurological injury,” the ALJ dismissed the Appellant’s petition for NICA benefits with prejudice. The Appellant appealed to the Fifth District court of appeals.

Florida Appellate Court Reverses Lower Court Decision, Remanding Summary Judgment Insurance Case Back to Trial Court

Published on: March 21, 2024 | by Friedman, Rodman & Frank, P.A.

Recently, the district court of appeals for the State of Florida Sixth District issued an opinion in an appeal involving an insurance claim between Rosemary Arway and the Progressive American Insurance Company (Progressive). The trial court entered summary judgment against Arway on the grounds that her claim for underinsured motorist (UM) benefits under an insurance policy issued by Progressive was time-barred by a five-year statute of limitations running from the date of Arway’s collision with an underinsured, third-party tortfeasor. Progressive’s insurance contract with Arway, however, tolled
the statute of limitations until the tortfeasor’s bodily injury (BI) liability insurance benefits were fully paid to Arway. Accordingly, Arway timely filed her UM claim against Progressive, and the appellate court reversed and remanded the case for further proceedings.

Facts of the Case

On August 25, 2015, Arway was seriously injured in an automobile collision with an underinsured motorist. At the time of the collision, Arway was covered under a Florida automobile insurance policy issued by Progressive, which included UM benefits coverage. The UM coverage section of the policy (Part III) included an exhaustion provision, conditioning Progressive’s payment of UM benefits on the payment of all BI liability benefits by the underinsured motorist’s insurer, and the policy’s “General Provisions” section (Part VII) included a no-action provision, conditioning suit against Progressive on compliance with all policy terms.

On November 27, 2018, in accordance with the policy, Arway notified Progressive that the underinsured motorist’s insurer had tendered its BI coverage limits of $50,000 to settle Arway’s claims against the motorist, and Arway requested that Progressive approve the settlement and release of Arway’s claims against the motorist. On December 26, 2018 (three years, four months after the collision), Progressive approved the settlement and offered to pay Arway $1,000 to resolve her claim for UM benefits under the Progressive policy. Arway and Progressive traded several additional demands and counteroffers, and on December 21, 2020 (five years, four months after the collision), Arway demanded $150,000 from Progressive to resolve her UM claim. On January 15, 2021, Progressive denied Arway’s UM claim on the ground that the statute of limitations had run on August 25, 2020—five years after Arway’s collision with the underinsured motorist.

Federal Appeals Court Defers Florida Tort Law Decision to Florida Supreme Court

Published on: March 13, 2024 | by Friedman, Rodman & Frank, P.A.

In a recent appeals case, the United States Court of Appeals for the Eleventh Circuit deferred an opinion for an appeal involving an application of Florida tort law to a dispute resulting from the collapse of a crane boom. The case was between the Plaintiff-Appellee, NBIS Construction & Transport Insurance Services, Inc. (NBIS), and the Defendants-Appellants, Liebherr-America, Inc. (Liebherr-America). NBIS, the third-party administrator and managing general agent of the insurer of the crane’s owner, recovered over $1.7 million, in a negligence suit against Liebherr-America. At the bench trial, the magistrate judge rejected Liebherr-America’s argument that Florida’s economic loss rule shielded it from liability. Liebherr-America appealed.

Facts of the Case

In 2016, Sims Crane & Equipment Company purchased a crane where Liebherr-America was under contract to provide factory-provided technicians on-site to train Sims personnel in safety procedures. Two Sims crane operators picked up the crane and a Liebherr-American trainer instructed them on the proper procedure for transportation. Training continued from January 30, 2017, to February 4, 2017. Liebherr-America normally provides around 80 hours of training to new customers, the Sims operators only received 40 hours of training. The Sims received training involving swapping out different crane booms but skipped training on multiple other issues, including receiving no training on the proper placement of specific pins for the crane.

On February 16, 2018, the crane was being used for a construction project. The incorrect pin was manipulated and was subsequently replaced in the incorrect position. A few days later, when the crane was being used, the boom would not fully extend despite the computer reading no errors. A crane technician was dispatched to the job site and a senior crane operator advised the operator that the crane would need to be placed in manual mode to override the computer lock. When the crane was put in manual mode and the boom was extended, it collapsed on itself, causing both a fatality and damage to the crane. Prior to this collapse, a similar collapse had occurred in Japan, leading Liebherr-Germany to publish safety guidance on the issue as well as implementing multiple safety precautions around pin usage.

Florida Appeals Court Affirms Lower Court, Finding Against Plaintiff in Premise Liability Slip-And-Fall Case

Published on: March 5, 2024 | by Friedman, Rodman & Frank, P.A.

In a recent case, the District Court of Appeals of the State of Florida Fifth District issued an opinion in an appeal involving a premises liability action arising from a slip-and-fall incident at a Wal-Mart store. The suit was between Sandra Leftwich, the Appellant, and Wal-Mart Stores East, LP (“Walmart”) and Thomas Schoendorf., the Appellees, arising from an incident where Leftwich slipped and fell in the Walmart.

Facts of the Case

The issue arose when Leftwich went to a Walmart location to shop and slipped on what she described as a clear liquid on the floor of the store. Video footage failed to capture the liquid, but an inspection of the area revealed a clear liquid on the ground after the incident. It is undisputed that Walmart had no prior knowledge of the liquid. In support of its motion, Walmart submitted the deposition of its former employee, Peterson, who was seen on the video pulling a pallet near the spill area nine minutes before the incident. The trial court’s order noted that Peterson’s pallet was not over the subject area or leaking.

In his deposition, Peterson explained that he was almost always looking on the floors for spills and debris. Given the area of the alleged spill, Peterson unequivocally testified that he would have noticed the liquid had it already been on the floor. When asked how long the spill was on the floor, he stated that it would have been there for less than ten minutes.

Florida Appellate Court Reverses Lower Court in Negligent Driving Liability Case

Published on: February 29, 2024 | by Friedman, Rodman & Frank, P.A.

Recently, the district court of appeals for the State of Florida Fifth District issued an opinion in an appeal involving a negligence claim by the Appellant, Carol Ann Kulzer, who claimed injuries and damages in her suit against the Appellees, Greenleaf Trust, and an employee, Sarah Marie Way. Ms. Way was running errands related to her employment with Greenleaf, such as inspecting and readying condominium units for sale when she stopped for lunch. Following lunch, she was heading back to a condominium for a business meeting when she negligently collided her car into the car driven by Ms. Kulzer. At trial, the court granted Greenleaf’s motion for summary judgment, absolving it from any vicarious liability to Ms. Kulzer. Ms. Kulzer appealed, arguing that Ms. Way was within the course and scope of her employment at the time of the wreck, and the appellate court agreed, reversing and remanding the decision for further proceedings.

Facts of the Case

Ms. Way ordinarily worked for Greenleaf in Kalamazoo, Michigan, but was temporarily assigned to work in Ormond Beach, Florida. Her role in Ormond Beach involved inspecting a condominium unit left to Greenleaf. Inspecting the unit consisted of dealing with some of its contents, helping prepare it for market, listing, and sale. Greenleaf paid all of Ms. Way’s expenses associated with her travel and work in Ormond Beach, including her meals. On the day of the incident in question, Ms. Way traveled to the condominium in the morning, left the premises around noon, and was scheduled to attend a 2:00 p.m. work-related meeting at the condo. After leaving her lunch to return to work, Ms. Way caused the wreck with Ms. Kulzer that prompted the suit around 1:46 p.m.

At trial, Ms. Kulzer sued Ms. Way for her negligence in causing the accident and sued Greenleaf on the theory that it was vicariously responsible for the negligence of its employee committed during the course and scope of her employment. Ms. Way admitted fault for the accident. Greenleaf moved for summary judgment, claiming that Ms. Was not within the course and scope of her employment at the time of the wreck. Under current Florida law, known as the coming and going rule, when an employee is on a single-purpose, personal lunch break, away from the workplace, and not engaged in the employer’s business in any manner, the employee is not considered to be within the course and scope of employment for workers’ compensation purposes. Based on the facts presented at trial, the trial court granted Greenleaf’s motion for summary judgment, concluding that under the coming and going rule, Ms. Way was not acting within the scope of her employment.

Florida Appeals Court Affirms Lower Court Decision in Florida Sovereign Immunity Case

Published on: February 17, 2024 | by Friedman, Rodman & Frank, P.A.

In a recent appeals case, the District Court of Appeals of the State of Florida Third District produced an opinion for an appeal involving sovereign immunity for Miami-Dade County in a vicarious suit alleging that a bus driver acted in a manner exhibiting wanton and willful disregard of rights or safety. The plaintiff, Michael Polanco, sued a bus driver, and her employer, Miami-Dade County following an incident where he was hit by a bus. Polanco was riding as a passenger on a Miami-Dade County bus. When the bus pulled over at a scheduled stop, there was a heated exchange between Polanco and the bus driver. Thereafter, Polanco exited and crossed in front of the bus. The bus driver then pulled away from the bus stop, and in doing so struck Polanco. The exchange between the bus driver and Polanco is captured on video, though the actual point at which the bus makes contact with Polanco is not.

Polanco sued the bus driver, as well as her employer, Miami-Dade County. At trial, the County answered, asserting it was sovereignly immune from suit and filed a motion for summary judgment, asserting its employee struck the passenger intentionally and that such conduct exhibited a wanton and willful disregard of human rights and safety, thus rendering the County sovereignly immune from liability. In response, Polanco presented evidence that he “walked essentially into the blind spot of the bus” when he was hit, and therefore the bus driver would not have been able to see Polanco when she pulled out of the bus stop. Subsequently, the trial court denied Miami-Dade’s motion, and they shortly appealed the decision.

On appeal, Miami-Dade argued to the appellate court that the trial court was mistaken in its ruling, stating that there was no genuine dispute as to whether the bus driver acted in a manner exhibiting wanton and willful disregard of Polanco’s rights or safety. The appeals court disagreed with Miami-Dade, affirming the trial court decision. The appellate decision stated that they affirmed the trial court’s order denying the County’s motion for summary judgment and that the lower court decision correctly concluded that there remains a genuine dispute as to whether the bus driver acted in a manner exhibiting wanton and willful disregard of Polanco’s rights or safety.