South Florida Personal Injury Lawyers Blog

Establishing the Duty of Care in a Florida Personal Injury Lawsuit

Published on: July 15, 2021 | by Friedman Rodman Frank & Estrada, P.A.

After experiencing an injury because of another’s negligence, an accident victim may be able to collect damages for their losses. Under Florida’s negligence laws, the plaintiff must establish that the at-fault party was responsible for the incident and ensuing injuries. While this may seem straightforward, the law has many nuances that make recovery challenging for many Florida accident victims. Injury plaintiffs must meet the four primary prongs of a personal injury lawsuit to recover damages successfully. In addition, they must be able to overcome any defenses the at-fault party poses.

Broadly speaking, a defendant may be liable for negligence if they failed to use reasonable care. Reasonable care is that which a similarly situated person would use under the same circumstances. Negligence may include the failure to do something that a reasonable person would do or doing something that a reasonable person would not do. The four elements of a Florida negligence lawsuit include establishing that the defendant owed the victim a duty, they breached that duty, that breach was the cause of the plaintiff’s harm, and the plaintiff suffered compensable losses. Defendants can refute any part of a plaintiff’s claim, and if they are successful, the claim will fail. As such, it is vital that claimants contact an attorney to ensure that all elements of their claim are met.

The most critical inquiry in these cases is whether the defendant owed the plaintiff a duty of care. In Florida, the duty of care is the other party’s legal responsibility to the injury victim. A person’s duty of care depends on many factors, including their age and relationship status to the victim. For instance, there are different duties of care for private citizens and their actions towards one another instead of the professional duty of care a medical provider has towards their patient. While a private citizen maintains a duty to drive safely and obey traffic rules, a nurse or doctor has a stricter duty of care to those they are treating than the average person. Similarly, the duty changes when the at-fault party is a business owner.

Florida Car Accident Kills Two, Injures Four Others

Published on: July 9, 2021 | by Friedman Rodman Frank & Estrada, P.A.

With more than 500 motor vehicle accidents occurring each day in Florida, these accidents make up the largest source of personal injury claims in the state. Last month, a tragic two-car accident killed a 13-year-old girl and one adult. Four others were injured in the fiery crash.

According to reports, the accident occurred when the driver of a pickup truck traveling eastbound in Volusia County failed to slow down while approaching an SUV traveling in front of him. The truck struck the SUV, which then flipped and exited the roadway before hitting a tree, where it caught fire.

The driver of the pickup truck and a 13-year-old passenger in the SUV were pronounced dead at the scene of the accident, with four others in the SUV incurring minor injuries.

Suing After a Florida Bus Accident

Published on: July 9, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Public buses provide the public with a necessary form of convenient transportation throughout many cities in Florida. While buses must undergo safety inspections and drivers must complete safety training, these vehicles are often involved in serious accidents. Filing a lawsuit against a city bus in Florida can present challenges to injury victims and their families. The state maintains specific laws that apply to lawsuits against public and governmental entities. An experienced Florida personal injury attorney can help accident survivors and their family members understand their rights to financial recovery.

The Federal Motor Carrier Safety Administration (FMCSA) compiles statistics regarding the rate of bus accidents in the state. According to their most recent reports, every year, nearly 63,000 accidents involve buses. Approximately 13% of fatal bus accidents involve intercity buses, 40% involve school buses, and 35% involve transit buses. For instance, local news sources reported that a Volusia County, Florida County employee suffered fatal injuries in an accident between a Voltran bus and a County pickup truck. Officials explained that the victim was driving a county vehicle when he hit the bus. The Highway Patrol stated that a preliminary investigation revealed that the bus was preparing to let passengers off the bus moments before the collision. In addition to the County driver, 14 of the 15 passengers aboard the bus were taken to local hospitals for injuries.

FMSCA reports that the leading causes of bus accidents involve:

Pecuniary and Non-Pecuniary Damages in Florida Accident Cases

Published on: June 30, 2021 | by Friedman Rodman Frank & Estrada, P.A.

When someone brings a wrongful death action in Florida, they will usually ask for both pecuniary and non-pecuniary damages. Pecuniary damages are damages that can be specific and represent a quantifiable monetary amount. For example, pecuniary damages may be awarded in the amount of a deceased’s medical bills, or to cover the specific funeral and burial costs in a wrongful death lawsuit. Non-pecuniary damages, on the other hand, are damages that cannot be measured precisely. For example, money to compensate for pain and suffering, emotional distress, and loss of consortium may be estimated and awarded as non-pecuniary damages.

Recently, the Eleventh Circuit released an opinion discussing pecuniary and non-pecuniary damages—and related choice of law concerns—in a wrongful death case. According to the court’s written opinion, the case arose when a Wisconsin citizen and his wife took a cruise aboard a Royal Caribbean cruise ship. While the ship was docked in Juneau, Alaska, he began experiencing shortness of breath and went to the ship’s infirmary. The ship’s physician examined him and gave him prescription medication. He then returned to his quarters, where he collapsed. He was taken to the hospital in Alaska but unfortunately died of a heart attack several days later.

The daughter of the deceased, also the personal representative of his estate, sued Royal Caribbean for negligence in medical care and treatment. She brought suit in the Southern District of Florida as required by the forum selection clause on the cruise ticket. After trial, a jury found Royal Caribbean liable and awarded the plaintiff $3,384,073.22 in damages, $3,360,000 of which represented non-pecuniary damages. Royal Caribbean appealed.

Florida’s “Apology Statute” as Evidence in Car Accident Lawsuit

Published on: June 30, 2021 | by Friedman Rodman Frank & Estrada, P.A.

After an accident, individuals may experience a sense of shock and fear, and these emotions can elicit statements and conduct that may not accurately reflect what the person is feeling. For instance, many people apologize after an accident, despite not being at fault for the series of events that led to the collision. Although it is a natural human emotion to apologize, it is vital that individuals limit what they say after an accident. While expressing remorse or saying sorry does not necessarily destroy a claim to damages, an at-fault party’s apology does not automatically impute liability on that person either.

Under Florida’s evidentiary laws, most out-of-court statements cannot be used as evidence during a trial. Evidence is permissible so long as it is relevant, yet some statements made outside of the courtroom are inadmissible as “hearsay.” However, some statements that an opposing party makes may be used against them during court proceedings. The permissibility of the statements depends on what the other party stated. For instance, if the at-fault driver gets out of their vehicle after an accident and states, “I am sorry this was all my fault,” that statement may be used against them. In contrast, a statement merely expressing remorse may not overcome the hearsay rules.

Apologizing may be an instinctual reaction and does not automatically amount to an admission of guilt. These critical distinctions have presented plaintiffs with evidentiary challenges during Florida car accident claims. Florida’s “apology statute” addresses when a statement may be used as evidence. Under the statute, “benevolent gestures” where one expresses sympathy regarding pain, suffering or death cannot be used as evidence in court. However, a gesture in combination with an admission of fault may be used as evidence. Courts will engage in inquiries to determine whether a statement is admissible.

Man Arrested More Than a Year After Fatal Florida DUI Car Accident

Published on: June 24, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, police officers arrested a South Florida man, charging him with several crimes related to a 2019 fatal Florida drunk driving accident. According to a recent news report, the man was driving at a high speed when he exited Interstate 95 in Fort Lauderdale. As he descended the off-ramp, he ran a stoplight, crashing into a Honda sedan.

The force from the collision pushed the Honda into traffic, where it was hit by a Jeep. The driver of the Honda was ejected from the vehicle and was pronounced dead at the scene by emergency responders. The at-fault driver remained at the scene, and police officers administered a breath test, discovering that he had a blood-alcohol content of .17. He also had several drugs in his system, including methamphetamine.

While law enforcement was aware of the driver’s intoxication at the time of the accident, the driver was not immediately arrested and charged. However, just this month, prosecutors decided to charge the man with several serious charges, including DUI manslaughter, vehicular homicide, DUI causing serious bodily injury, reckless driving causing serious bodily injury, DUI with damage to property or a person and reckless driving causing damage to property or a person. Authorities have not yet explained why there was such a significant delay in charging the driver.

Fatal Florida Car Accident at Pride Parade Claims One Life

Published on: June 24, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, one man was killed and two others seriously injured when a pick-up truck careened into a crowd of people participating in a Pride parade. According to a local news report, the collision occurred in Wilton Manors, not far from Fort Lauderdale.

Evidently, the driver of the pick-up truck inexplicably began accelerating into the crowd of people. Most of the people in the area were able to avoid the truck; however, it struck three people. One man was killed and two others were seriously hurt.

Initially, the accident was thought to be a targeted attack against the LGBTQ community. However, upon further investigation, authorities discovered that the driver of the pick-up truck was a member of the Fort Lauderdale Gay Men’s Chorus and that it was an accident.

Appellate Court Finds Insufficient Evidence in a Florida Slip-and-Fall Case

Published on: June 16, 2021 | by Friedman Rodman Frank & Estrada, P.A.

Florida law requires businesses to keep their premises safe for customers. This includes keeping floors dry so that customers do not suffer slip-and-fall accidents. Those who are injured after slipping on a wet floor must show that a business had actual or constructive knowledge of the floor’s dangerous condition and should have done something to fix it.

Sometimes, plaintiffs can offer direct evidence to show that a business knew about a wet floor. For example, a waiter could testify that he saw a spilled drink on a restaurant floor. In other cases, accident victims must rely on circumstantial evidence to prove constructive knowledge. Plaintiffs demonstrate constructive knowledge by showing that a dangerous condition like a wet floor existed long enough that a business should have known about it, or that the condition happened with regularity at the business.

This month, a Florida appellate court issued an opinion in a slip-and-fall case that relied on circumstantial evidence to prove constructive knowledge of a wet floor. The court concluded that the plaintiff failed to prove constructive knowledge because her case relied on a series of “stacked” inferences.

Appeals Court Decides Florida Insurance Bad Faith Lawsuit Involving Fatal DUI Accident

Published on: June 16, 2021 | by Friedman Rodman Frank & Estrada, P.A.

A Florida appellate court recently issued an opinion considering whether an insurance company acted in bad faith towards its policyholder when it failed to settle a claim. The claim arose when the insured slammed into another driver’s vehicle while driving drunk, pushing it in front of an oncoming train. The driver’s eight-year-old son was killed in the accident, and the driver suffered permanent injuries. After two years of criminal proceedings, the insured pleaded guilty, and the court sentenced him to 12 years in prison.

Following the accident, the insurance company tried to settle the claim with the victim and tender the entire policy limits to the woman and her son’s estate. The woman’s attorney stated that they were not ready to accept the payment and would await the culmination of the insured’s criminal proceeding. After the insured’s guilty plea, the woman’s new attorney advised the insurance company that they were ready to accept the settlement so long as it strictly complied with several provisions. Most relevant was that acceptance of the settlement would only release the insured and prohibited any indemnity provisions. The insurance company issued a check and stated that they satisfied all conditions. However, the woman’s attorney disagreed, and the insurance company responded that the attorney could strike any conditions they did not agree with. The attorney did not respond, and the woman filed a lawsuit against the driver in state court and won a judgment exceeding $10 million. The woman then filed a third-party bad faith lawsuit against the insurance company.

Under Florida law, insurance companies owe a good faith duty to their insureds in handling their claims. While the duty typically governs the relationship between the company and the insured, Florida law permits causes of action by the victim against the insurance company for its bad-faith failure to settle. The primary inquiry in these cases is whether the insurer diligently worked to settle the claim as if the victim were in the insured’s shoes. In this case, the victim argued that the company acted in bad faith by including overly broad release language. Although overbroad language can create a jury question, the court reasoned that it does not automatically amount to bad faith. Further, looking at the totality of the circumstances, it is clear that the insurance company attempted to settle the claim in a timely and fair manner. Ultimately, the court found that while the company’s action may have been negligent, it did not amount to bad faith.

Court Finds Defendant in Material Breach of Florida Premises Liability Settlement Agreement

Published on: June 9, 2021 | by Friedman Rodman Frank & Estrada, P.A.

The Second District Court of Appeals recently issued a decision regarding a settlement agreement in a Florida premises liability case. The plaintiff appealed a final order enforcing a settlement agreement in favor of the defendants–a Health Center. Following a lawsuit against the Health Center, the parties entered into a settlement agreement which allowed the Health Center to satisfy the final judgment if they “timely made” thirteen monthly payments. The agreement included a specific payment schedule and stated that if a monthly payment is late, the defendant had ten days to cure it from the date the plaintiff made written notice.

The first two monthly payments were three days and two days late; in both situations, the Health Center promised that the payments were forthcoming. As such, the plaintiff refrained from sending the ten-day cure notice. After the Health Center failed to make the payment, the plaintiff moved for a default judgment; however, the parties agreed to reinstate the settlement. This pattern continued for the next several months; however, the defendants did not argue the validity or effectiveness of the settlement agreement. The defendant sent the final payment with a notice stating that they were expecting a release from judgment. The plaintiff rejected the final payment, arguing that the defendants were in breach of the agreement based on the late payments. The defendant moved to enforce the agreement.

In Florida, courts reviewing settlement agreements look to the ordinary meaning of the contract’s language. In this case, the agreement stated that the plaintiff would only accept the agreed-upon sum if the defendant made timely payments. Further, the agreement stated that the plaintiff could declare a default judgment if the payment were not received during the ten-day cure period. The defendant argued that the plaintiff’s acceptance of late payments rewrote the contract. The court explained that although subsequent conduct can modify terms in a contract, nothing in this situation indicated an intent to change the terms. Even though the plaintiff did not send a ten-day cure notice after the first two late payments, they did so at the third late payment. When the defendant did not respond, the plaintiff moved to declare a default judgment. Moreover, every receipt for subsequent payment stated that the payment was being accepted in “partial satisfaction of the Amended Final Judgment.” As such, the original settlement agreement terms remained effective.