Personal Injury

Florida Appeals Court Examines Res Ipsa Loquitur Requirements in Personal Injury Case: MacClatchey v. HCA Health Services of Florida, Inc.

Published on: June 16, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s Fourth District Court of Appeals has ruled that a personal injury case should be tried before a jury. In MacClatchey v. HCA Health Services of Florida, Inc., a woman was injured when a framed piece of artwork fell on her head while she was visiting her spouse in the hospital. According to the woman, a hospital worker cleaned up shattered glass from the picture’s frame and showed her broken hooks on which the artwork was previously hung. Following the incident, the woman filed a negligence claim against the hospital. In her lawsuit, the woman stated she was injured because the hospital failed to exercise reasonable care.

The hospital responded to the woman’s lawsuit by filing a motion for summary judgment. In a motion for summary judgment, a party to a lawsuit is asking the court to rule in his or her favor because there are no material facts in dispute and the undisputed facts of the case entitle that party to judgment in its favor. In the hospital’s motion, the company asserted that it did not know or have reason to know the piece of artwork posed a danger. Additionally, the hospital alleged that the negligence doctrine of res ipsa loquitur did not apply to the facts of the case because numerous third parties had access to the artwork. This doctrine infers negligence based upon a party’s resulting harm without requiring direct proof of negligent behavior where the cause of an injury is under the exclusive control of a defendant and the accident is one that normally would not take place but for an act of negligence. The trial court granted the hospital’s motion for summary judgment and the injured woman appealed her case to Florida’s Fourth District Court of Appeals.

On appeal, the court stated summary judgment was inappropriate in this case because there was a question of fact regarding whether the framed artwork was under the exclusive control of the hospital. The court also determined that several affidavits offered to the trial court showed the circumstances surrounding the purported failure of the picture hanging hooks were in dispute as well. Because the evidence could permit reasonable people to draw different conclusions, the appellate court reversed the trial court’s decision and stated the case should have been submitted to a jury.

Is There a Non-delegable Duty to Supervise Florida Hospital Doctors?

Published on: May 27, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a 2012 case, a plaintiff appealed a final judgment that entered a defense verdict for a hospital in her wrongful death case. The case arose when her husband went in for back surgery and died the next day from cardiac arrhythmia. After that, the plaintiff sued the hospital for its own negligence and the negligence of its employees.

The plaintiff named an ER physician as a negligent agent for whose actions the hospital was liable. The plaintiff claimed the hospital was vicariously liable under the respondeat superior doctrine. This doctrine permits a company to be held responsible for its employees that act in the course and scope of employment on the employer’s behalf. The plaintiff also alleged the hospital was responsible for the physician’s conduct because there it had a nondelegable duty to supervise him.

The plaintiff’s expert witness testified in deposition that the doctor had violated is duty by delaying in his response to an emergency situation. The hospital filed a motion for partial summary judgment. It argued that the ER doctor was an independent contractor and therefore it wasn’t liable for him. The trial court granted the partial summary judgment, ruling the doctor did not serve as an actual agent of the hospital. The trial court concluded there was no non-delegable duty to supervise. Continue Reading ›

Releases for Dangerous Activities in Florida

Published on: May 13, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a man whose wife drowned while scuba diving in 2010 appealed the court’s granting of summary judgment in favor of the recreational diving operation Key Dives. The wife had drowned at the start of an advanced open water dive to an underwater wreck.

It was Key Dives’ practice to require customers to sign a release before a day’s dive. The man and his wife signed these releases in favor of Key Dives on previous dives. On the morning of the fatal dive, the couple was late in arriving. They did not sign the release for that day’s dive. It was a dive for which dive industry standards dictated a particular type of release was to be used.

On the morning of the dive, the woman was worried about diving for unknown reasons. Ocean swells were between 4-5 feet. The husband went in first and his wife followed. After going down about 10 feet, she signaled she wanted to come back to the surface. She tried to board the boat but lost her grip and drifted off. An alarm was sounded, but she was found drowned.

“Stand Your Ground” and Personal Injury Cases

Published on: May 8, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a roofing company defendant and Jose Alvarez asked the appellate court to review an order denying a motion to dismiss a civil action brought under the provisions of the Florida Stand Your Ground Law. The trial court denied the motion without holding an evidentiary hearing to decide whether Alvarez was right to employ force against the plaintiff under Stand Your Ground.

The case arose when Alvarez hit the plaintiff, a former employee of the roofing company, with a baseball bat at the roofing company. Alvarez claimed he was immune from criminal prosecution because he had used justifiable force against a threat that the plaintiff was about to use unlawful force. He filed a motion to dismiss under Stand Your Ground. The criminal court granted the motion and dismissed the charges.

The plaintiff sued Alvarez for battery, assault, negligence, and intentional infliction of emotional distress while the criminal case was pending. He also sued his employer, claiming vicarious liability for negligence and for negligently retaining a dangerous employee. He also asked for punitive damages.

Employer Liability for Rental Car Accident in Florida

Published on: May 2, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case the Florida plaintiffs were injured in a car accident involving a rental car. The rental car was paid for by the employer Bell Partners and authorized for its employee to drive for business purposes. However, at the time of the accident it was driven by the employee’s husband.

The plaintiffs sued the employer under the dangerous instrumentality doctrine. It claimed that the employer was vicariously liable for authorizing and paying for the driver’s wife to rent the vehicle. The employer denied liability. It argued that it had not agreed to the employee’s husband driving the rental car and that its policy prohibited unauthorized drivers or personal use of company rental cars.

Both parties filed cross-motions for summary judgment. The driver’s wife frequently traveled for her employer who owned several senior living communities in multiple states.

Negligence Per Se in Florida Escalator Injury Case

Published on: April 28, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a 2010 case, a woman appealed from a judgment entered after directed verdict in a personal injury case. The woman had sued an elevator corporation and Miami Dade County after she fell on an escalator at the airport. She claimed the escalator had stopped abruptly. She had fallen. The escalator had been reported as not working just hours before her fall.

There was no record of a technician checking the escalator and also no record of repair work performed on the escalator. When the case went to trial, the court excluded evidence that there had been previous problems with the escalator and also denied the plaintiff’s request that the jury be instructed on negligence per se. The defense attorney was permitted to argue there was no evidence of prior problems over the plaintiff’s objection.

The plaintiff’s doctor testified that the plaintiff would require back surgery in the future, but the trial court wouldn’t allow the doctor to give an opinion about future surgery because he was not a surgeon.

Can a Florida Co-Owner of a Car Avoid Vicarious Liability for an Accident?

Published on: April 24, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, the Florida Supreme Court answered a certified question on the question of whether a co-owner of a car could avoid vicarious liability by claiming he didn’t intend to be owner of the vehicle and had relinquished control to a co-owner. Robert Christensen paid for a Chrysler PT Cruiser in 2003, putting the title in both his wife’s name and his own name. Both signed the application under penalty of perjury to have the title paperwork list them as co-owners. They were in the process of divorcing.

The husband didn’t receive the certificate of title because it went to his wife. He did not have a key or use the vehicle, nor did he live with his wife, though title was in his name. About 22 months later, the wife negligently hit and killed a man while driving the car. The title was still in the name of both husband and wife as co-owners. The car was operated with the husband’s consent.

After the accident, the decedent’s wife Mary Jo Bowen sued for wrongful death against both Christensen and his wife. The plaintiff claimed that Christensen was vicariously liable for his wife’s negligent operation of the vehicle under the dangerous instrumentality doctrine. Christensen argued that he wasn’t vicariously liable. He later testified he had bought the car as a gift for his wife and wasn’t involved with the car after purchase.

Burden of Proof and Nursing Home Agreements

Published on: April 21, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a woman appealed an order that granted a retirement home’s motion to compel arbitration. These motions are fairly common in nursing home abuse or nursing home negligence cases. Often a nursing home requires incoming residents to sign an arbitration agreement before being admitted and this agreement requires the resident to submit any dispute to a particular arbitrator and set of arbitration rules. Issues arise when the arbitration agreement requires a resident to subscribe to rules that impact their ability to recover for serious losses under Florida law.

In Florida, an arbitration agreement can be found contrary to public policy where the agreement substantially limits remedies set forth under the Nursing Home Residents Act (NHRA) or Assisted Living Facilities Act (ALFA). Under NHRA, any claim alleging a violation of rights or negligence causing injury or death to someone living in a nursing home must be proven by a preponderance of the evidence. A claimant must show (1) nursing home or other defendant’s duty to the resident, (2) breach of duty, (3) the breach is a legal cause of loss or injury or other damage to the resident, (4) actual loss, injury, death or damage due to the breach.

In this case, the plaintiff had signed an arbitration agreement that required arbitration by the American Health Lawyers Association under its alternative dispute resolution rules. She signed it in order to be admitted to the residential facility.

Florida Court Takes on Bahamian Food Poisoning Case – Howard v. Kerzner

Published on: April 17, 2014 | by Friedman Rodman Frank & Estrada, P.A.

As our society becomes increasingly mobile, it’s likely that courts will be tasked more frequently to resolve legal disputes among parties in different states. The decision on which state’s laws apply to a given case is an important one. As the U.S. District Court for the Southern District of Florida explains in Howard v. Kerzner, it can even make or break the case.

Ms. Howard, who lives in North Carolina, sued Kerzner International Limited, alleging that she suffered food poisoning while dining at the Mesa Grill during her stay at Atlantis Resort on Paradise Island in the Bahamas. Specifically, she claimed that the restaurant served her fish containing ciguatoxins, which the court said are natural toxins found in tropical fish and can cause food poisoning-like symptoms when consumed. Kerzner, a Bahamas-based company, owns and operates the resort and Kerzner asserted that its employees caught and prepared the fish. She alleged claims for strict products liability, and breach of express and implied warranties.

The District Court began by explaining that Bahamian law applies to the case, even though it was proceeding in Florida. “Unless another state has a more significant relationship, the local law of the state where the injury occurred determines the rights and liabilities of the parties.” The Court wrote, quoting the State Supreme Court’s 1980 decision in Bishop v. Florida Specialty Paint Company.

Unanticipated Seizure and Florida Car Accidents

Published on: April 10, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Foreseeability plays a part in analyzing whether a defendant is responsible and should be held accountable for a plaintiff’s injuries. In a recent case, Jordan Marcum, her employer and her liability insurer appealed an adverse judgment arising from a car accident that caused personal injuries to Angela Hayward.

The case arose because Marcum had lost consciousness while driving during a seizure. She was assistant manager of a poll company and driving the company vehicle in the course and scope of her employment. Her coworker was riding in the passenger seat.

The woman later testified that she had blacked out, woken for a moment and blacked out again. Her next memory was of the paramedics. Her coworker testified he tried to depress the brake pedal with his hand, but couldn’t reach it with his seatbelt on. Within 15 seconds, he felt the accident’s impact.