Personal Injury

When Are Damages Excessive or Inadequate in Florida Personal Injury Trials?

Published on: November 6, 2013 | by Friedman Rodman Frank & Estrada, P.A.

A Florida jury may not award greater damages than what is supported by the evidence presented at trial. Under Section 768.043(2), trial courts must consider several factors in trying to determine whether damages awarded by the jury are excessive or inadequate after a trial.

These factors include consideration of:

• whether the award is motivated by prejudice or corruption,
• whether the trier of fact obviously ignored the evidence,
• whether the trier of fact considered improper elements into account or speculated,
• whether the amount awarded is reasonably related to the injury suffered,
• whether a reasonable person would logically see the evidence supports the award.

In a recent case, a plaintiff sued an amusement park after getting shot by a third party while leaving the park. While the jury was deliberating, it asked to look at the present and future value tables for the plaintiff’s medical expenses. An economist had prepared the future medical expenses table based on a report by the plaintiff’s expert on future care. The report stated that the plaintiff would need to use a dorsal column stimulator every five years for the remainder of his life.

Will Changes to “Stand Your Ground” Affect Personal Injury in Florida?

Published on: October 14, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s “Stand your ground” laws gained national attention in connection with the Trayvon Martin shooting. This law permits someone who is attacked in a place where he or she has a right to be and who is acting lawfully to “stand his or her ground” and “meet force with force.”

Unlike other states where there is a duty to retreat, in Florida the person may even use deadly force if he believes it necessary to do so in order to prevent injury or death or the commission of a “forcible felony” to anyone.

Recently, a Florida Senate committee approved some changes to the law, which would alter neighborhood watch programs. Of particular note to potential plaintiffs are changes in connection with personal injury lawsuits that could arise in the context of a person utilizing the law to defend him or herself.

Exceptions to Workers’ Compensation Immunity in Florida

Published on: October 11, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Under Florida Workers’ Compensation law, employers have worker’s compensation immunity for their employees. An “employee” also means an independent contractor working in the construction industry. It does not, however, include someone who is an owner-operator of a motor vehicle who transports a haul under contract with a “motor carrier.” If an owner-operator of that vehicle is injured in an accident, it can be difficult to sort out legal liability for the injuries.

In a recent case, a single-vehicle dump truck accident hurt a plaintiff at a construction project. The defendant was a general contractor who had entered into a subcontract with a trucking company that offered to haul fill from the project to the dump. The plaintiff was a dump truck driver who had entered into a service contract with the subcontractor. The agreement between them identified the driver as an “independent contractor” and the subcontractor as a “broker.”

The subcontractor paid the plaintiff on a commission basis and the plaintiff was required to maintain his own vehicle, pay for all expenses including gas, and choose his own schedule, as well as the manner of transporting a load. While hauling a load of construction materials, the plaintiff’s dump truck turned over, injuring him. The plaintiff sued the general contractor for negligence and loss of consortium.

Negligent Entrustment in Florida

Published on: October 7, 2013 | by Friedman Rodman Frank & Estrada, P.A.

A Florida statutory subsection limits damages when an owner loans his vehicle to another person whose negligent operation of the car leads to damages to a victim. In that case, the owner is liable only up to $100,000 per person and up to $300,000 per incident for bodily injury and $50,000 for property damage.

In a recent case, a father and son shared title to a vehicle. The son crashed into a woman and her three minor children. The accident killed one of the three children and injured all of them. The woman and her husband sued the son for negligence and also sued his father as being “vicariously liable” because he was a joint owner of the car.

The jury found that both the son and the woman were 50% negligent. The jury awarded the father of the three children medical and funeral expenses for the child that had been killed. It also awarded past and future pain and suffering to each member of the family, plus medical expenses to the two living children.

When is Evidence About a Driver’s License Admissible in a Florida Personal Injury Trial?

Published on: October 4, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Both plaintiffs and defendants are subject to intense questioning about personal subjects when engaged in a personal injury lawsuit in Florida. Each side will attempt to find information to discredit the other side. If you drove on a suspended license, if you have a history of traffic violations or you had no license at the time of an accident, you may be concerned about this evidence coming in and affecting your case.

In order for evidence regarding a driver’s license to be admissible in a Florida personal injury case there must be a causal connection between the violation and injuries suffered. The driver’s competence must be at issue. In other words a person’s violation of a traffic regulation is admissible only if it tends to prove the person’s negligent operation of the vehicle or to show the driver’s incompetence.

The accident at issue in a recent case happened at the intersection of Hwy 301 and S.R. 674 in December. A woman was rising in a Nissan Sentra driven by her nephew. He was driving northbound and as he tried to turn onto S.R. 674, he crashed into a white cargo van that was driving southbound. The van belonged to a stucco company and it was hauling a cement mixer.

The Rescue Doctrine in Florida

Published on: October 1, 2013 | by Friedman Rodman Frank & Estrada, P.A.

In Florida, a person who has created a perilous situation for another person will be held to have caused the peril not only to a victim, but also the person attempting to rescue him. The creator of the situation is thereby liable for the rescuer’s injuries. A plaintiff must prove three elements: the defendant’s negligence, the person to be rescued was in imminent peril due to the defendant’s negligence, and that the rescuer acted reasonably under the circumstances.

In a recent case, the plaintiff was at the hospital while hospital employees were gait training patients in the hallway. A patient who was being gait trained began to fall and in the process caused the plaintiff to fall and suffer an injury.

She sued the hospital claiming that it violated its duty to warn of a dangerous condition and to keep the premises reasonably safe for invitees that might be present while inexperienced therapists were performing gait training. She claimed these conditions were not apparent to her. However, she did not plead the rescue doctrine. Instead she presented the whole account as one in which she happened to be walking down the hallway when she was knocked over by an unknown patient.

When Is An Accident Reconstruction Expert’s Testimony Excluded in Florida?

Published on: September 26, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Critical to some Florida car accident cases is the testimony of an expert on accident reconstruction. Often it is unclear what actually happened–the parties either don’t remember or have grossly different accounts of the events. In those cases, an accident reconstruction expert can shed light on all that is unknown by using concrete, certain facts. The other side may not want that expert to testify. When is it appropriate for the court to prohibit the testimony or accompanying evidence?

In a recent case, a couple was driving north in Florida and stopped at a stop sign at an intersection. As the driver turned left, his car hit the plaintiff’s vehicle as it approached from the left, causing the plaintiff’s car to spin and hit a palm tree. The plaintiff was thrown out of his vehicle and suffered significant injury.

The single driver sued the couple, claiming that the husband’s negligence in entering into his lane of traffic caused the crash and his injuries. The defendants argued that the plaintiff caused the accident by going over the posted 35 mph speed limit, a fact they supported on the basis of the husband stopping at a stop sign and not seeing the plaintiff. They also pointed to the physical damage, the final resting point of the vehicles and the plaintiff’s failure to wear a seatbelt as evidence that his injuries were his own fault.

Settlement Offers in Florida

Published on: September 24, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Often plaintiffs must work towards settlement not only with a defense attorney, but also an insurer. One strategic area during a lawsuit is settlement offers. There can be an advantage to trying to settle early. However, offers must be extremely specific. This is why it is critical to secure the help of an experienced attorney before communicating with the insurer for the other side.

In a recent case, a defendant appealed the final judgment entered in favor of a wrongful death plaintiff. The plaintiff and her minor child were in a car when they were rear-ended by the defendant’s car. The impact pushed the plaintiff’s car into a moving train. This caused severe injuries to the plaintiff and killed her son.

The plaintiff’s attorney contacted the defendant’s insurer and offered to settle with the policy limits. The offer had a time limit for accepting and included a reference to restrictions on the nature of the release. The insurer responded to the offer, including some draft checks and proposed releases. The plaintiff’s attorney told the insurer that the releases violated the terms of the offer and that it would therefore consider the response a rejection and counteroffer.

What Happens if a Florida Trial Judge Makes a Legal Error in Granting a New Trial?

Published on: September 19, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Sometimes, even after all the hours of trial preparation, a trial, and jury deliberation, a new trial is appropriate. In a recent Florida Supreme Court case, the court considered the automobile accident injuries of a man (the plaintiff) who was injured when rear-ended by a drunk driver (the defendant).

The plaintiff claimed that he suffered neck pain that led to him needing a cervical spinal fusion surgery. The defendant did not contest liability, but he did claim that the accident didn’t cause the plaintiff’s injuries. He also defended on the grounds that the plaintiff had preexisting back pain and spinal degeneration, plus a previous surgery and car accident.

However, the medical experts agreed that the accident was partly the reason for the neck injury. A pain specialist testified on the plaintiff’s behalf that he would never be free. A neurologist testified there wasn’t necessarily a connection between the amount of damage sustained by a car and a plaintiff’s injuries.

He testified as to a connection between the neck injury and the accident, but found it difficult to correlate the plaintiff’s lower back pain with the accident. A neurosurgeon testified that smoking was a risk factor for spinal degeneration, but still opined the accident caused the plaintiff’s neck problems.

Constitutional Considerations in Florida Punitive Damages

Published on: September 17, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Both compensatory and punitive damages may be awarded in Florida personal injury cases. Punitive damages receive a lot of attention in the news because they may be quite high in certain circumstances. They may be particularly high where the defendant is a multi-million dollar corporation and the defendant’s conduct is malicious, wanton or outrageous.

Recently, in a Florida appellate case, the tobacco company argued, among other things, that the punitive damages were both constitutionally excessive and tainted by the plaintiff’s reference to other tobacco companies.

The plaintiff in the case was the wife and personal representative of a deceased person who had died from lung cancer as a result of smoking. She filed suit against the tobacco company that had made his cigarettes, claiming negligence, strict liability, conspiracy to commit fraud and fraudulent concealment.