South Florida Personal Injury Lawyers Blog

The Applicability of the Set-Off Defense in Florida Car Accident Claims

Published on: July 29, 2020 | by Friedman Rodman Frank & Estrada, P.A.

In a recent opinion, an appellate court in Florida addressed the applicability of the set-off defense after a car accident victim filed a claim for damages with an insurance company. The plaintiff suffered injuries when an uninsured motorist crashed into his car, resulting in serious physical and property damage to the plaintiff. In response, the plaintiff filed a claim with his insurance company under the uninsured/underinsured (UIM) provision in his policy. The insurance company denied the claim, and the plaintiff filed a lawsuit for breach of contract.

A jury determined that the plaintiff was entitled to damages for his loss of earnings, medical expenses, and pain and suffering. Subsequently, the insurance company contended that the trial court erred in failing to set off duplicated benefits that the plaintiff obtained from other sources. The defendant asked the court to set off from the damages award, the amount of any settlements the victim received that duplicated any part of the verdict.

The court analyzed Florida’s set-off rules and concluded that the trial court should amend the verdict to reflect the duplication. After a car accident, injury victims may obtain benefits from more than one source for a single accident or claim. This often occurs when the negligent motorist or their insurance company settles or pays out damages for a portion of the victim’s losses. In most cases, the settlement amount specifies what exactly the payout covers. For example, the settlement amount may specify that the payments are for medical benefits or lost wages. Although, Florida’s laws allow double recovery, there are restrictions when there is a duplication of benefits.

What Is an “Open and Obvious” Hazard in a Florida Premises Liability Case?

Published on: July 27, 2020 | by Friedman Rodman Frank & Estrada, P.A.

To prevent injuries on their land, landowners must inform guests of any hidden dangers they might encounter. However, property owners will often try to escape liability by claiming the danger is open and obvious and, thus, they do not need to warn others about the hazard. The open and obvious doctrine provides that if a dangerous condition is so obvious and apparent to a reasonable person, the owner does not need to tell guests about the danger and is not liable if a person is injured after failing to notice the hazard.

A recent state supreme court case discussed whether a church was negligent after the plaintiff was seriously injured after tripping on the top step of the stairs. The plaintiff, despite previously using the steps a few minutes before, fell while carrying a casket out of the church. The plaintiff brought a premises liability lawsuit against the landowner, alleging the dangerous condition of the property caused his injury.

However, the defendant asserted that the condition of the top step was an open and obvious condition, meaning the church was not liable under a premises liability theory. The court relied on the specific facts of the case to make its determination: the top step was composed of a different material than the other steps, and the top step was an extra four inches higher than the others. Ultimately, the court concluded that because the top step’s look was different from the others, and the plaintiff had already used the steps before, the danger was open and obvious. Therefore the defendant was not liable for failing to warn the plaintiff.

What Constitutes a Florida Medical Malpractice Case?

Published on: July 23, 2020 | by Friedman Rodman Frank & Estrada, P.A.

When you head to an appointment with a Florida medical provider, you expect to be treated with respect and to get better soon. But what happens when you’re injured or hurt because of the health care service you receive? Can you sue for medical malpractice? Was it medical malpractice to begin with?

Medical malpractice cases in Florida are unique, in that they have their own requirements. When determining whether a medical malpractice theory applies, courts look to whether the injury arose out of the delivery of, or failure to deliver medical care or services by a health care provider. Healthcare providers in Florida include licensed physicians, osteopaths, podiatrists, optometrists, dentists, chiropractors, pharmacists, hospitals or ambulatory surgical centers. If the defendant is a health care provider under Florida law, then the case falls under medical malpractice and requires stricter procedural rules. Additionally, health care providers or facilities that are not expressly included within the definition of the statute can also be vicariously liable for acts of health care providers.

However, not all situations involving health care related services are necessarily considered medical malpractice in Florida. For example, in a recent state Supreme Court opinion, a plaintiff brought suit against her massage therapist after he allegedly sexually assaulted her during a massage. Before the assault, two separate customers had complained to the facility about the therapist’s conduct and how he had been inappropriate with them during their massages. The plaintiff sued the massage therapy company and claimed that it was negligent in its training, supervision, and retention of the massage therapist who assaulted her.

Florida COVID-19 Nursing Home Cases Are Rising

Published on: July 21, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Recent news reports indicate that although many of new Florida COVID-19 cases consist of younger people, the vast majority of deaths are linked to nursing homes. Florida COVID-19 cases have reached record heights since the state reopened. Unfortunately, this surge may have a deadly impact on vulnerable individuals, such as those older adults residing in nursing homes. In many states, including Florida, nursing homes have been pushing for legislation that provides immunity for COVID-19 related deaths. However, even in states where the bill has passed, the protection has limitations. Individuals whose loved ones contracted COVID-19 while residing in a Florida nursing home should contact an attorney to discuss their rights and remedies.

The Centers for Disease Control (CDC) has stated that these facilities should take steps to prevent the spread of COVID-19 into their facility. Engaging in safe practices could drastically change the likelihood of transmission within these facilities. However, nursing homes argue that they would experience an undue burden if they were responsible for COVID-19 deaths in their facility. As lawmakers address proposed legislation to limit nursing home liability for COVID-19 deaths, many argue that these facilities need more oversight, rather than immunity.

Government Accountability Office (GAO) reports on nursing homes found that over 80% of these facilities had infection prevention and control violations before the pandemic, despite regulatory practices. These violations included conduct that created serious risks to staff and residents. Inspectors found that many of these facilities failed to isolate sick residents and failed to ensure that personnel engaged in proper hand hygiene. Further, over half of the facilities with violations were previously cited for health and safety deficiencies.

The Good Samaritan Act and Its Effect on Florida Personal Injury Claims

Published on: July 15, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Under Florida law, a person who suffers injuries because of a negligent healthcare professional may be able to recover for their damages. However, the plaintiff must meet specific requirements to succeed on their claim. Specifically, a plaintiff must establish that the healthcare provider had a legal duty to provide the appropriate care, that they breached that duty, and they suffered damages as a result of the defendant’s breach. To establish the “breach” element of a claim, plaintiffs must show that the healthcare provider’s conduct fell below the prevailing professional standard of care for a similarly situated provider.

Some healthcare providers try avoiding liability by evoking the Florida Good Samaritan Act (the Act). The Act protects some healthcare practitioners from liability when they are providing necessary emergency care. The Act covers physician assistants, nurses, and other professionals who provide emergency care. In these cases, the emergency provider may not be liable for civil damages if the claim stems from their emergency care or treatment, if another reasonably prudent person would have acted similarly. The law extends coverage, even if the patient did not receive treatment through an emergency room. However, plaintiffs can recover if they prove that the provider exhibited reckless disregard in their care, such that they knew or should have known that their behavior would create an unreasonable risk of injury or harm. Additionally, the Act may not apply when there are questions regarding whether the patient was receiving emergency medical treatment.

Recently, a state appellate court issued an opinion addressing issues that often arise in Florida accident claims. In that case, the plaintiff suffered severe bodily injuries when an ambulance driver ran a red light and slammed into the plaintiff’s car. The ambulance was transporting a patient after he had undergone dialysis. The plaintiff argued that the ambulance driver was not carrying a patient during an emergency situation, and he was not using his lights or siren when he ran the red light. The defendant argued that they were immune under the state’s medical provider immunity act, and they did not engage in willful or wanton conduct. The plaintiff argued that merely operating an ambulance for non-emergency transport is not covered by the state’s act. Ultimately, the court found that the ambulance driver’s actions in driving and running a red light during a non-emergency event were not integral to providing care. Therefore, the court affirmed that the ambulance driver was liable for the plaintiff’s injuries.

Holding a Florida Daycare Facility Liable after a Child Is Injured

Published on: July 13, 2020 | by Friedman Rodman Frank & Estrada, P.A.

When we send our children to daycare, we trust that they will be safe, well taken care of, and protected while we’re at work. However, Florida daycare accidents happen, and no parent ever wants to receive a phone call informing them that their child has been hurt. When parents entrust daycare centers and caregivers to watch over their children, they should be able to do so without worrying about unsafe facilities or neglectful caretakers. Thus, when accidents occur, those individuals responsible should be held accountable for their actions.

In a recent state appellate court opinion, the plaintiffs sued on behalf of their son, who suffered a serious injury while at a daycare facility. Evidently, while the child was sleeping, an unsecured television collapsed on him. Barely two years old, the impact from the accident crushed part of his skull and left him connected to a ventilator for nine days. The child subsequently suffered significant developmental issues following the accident. The plaintiffs sued the daycare facility, its owner, and the employee directly responsible for caring for their son, asserting claims of negligence and premises liability. After trial, the jury awarded the plaintiffs $30.3 million in compensatory damages.

The daycare appealed the damages award and judgment entered against them, attempting to secure a new trial. The daycare argued that there was juror misconduct and an introduction of extraneous information that tainted the jury’s judgment and influenced the verdict. Ultimately, the court disagreed with the defendants’, holding that there was no extraneous information that actually prejudiced the verdict and denied the daycare’s request for a new trial.

Florida Premises Liability Law Protects Cruise Ship Passengers

Published on: July 9, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Everyone who gets on a cruise is hoping for a relaxing, fun-filled, and sunny vacation. However, accidents can happen during these trips, and cruise ships have a responsibility to keep their patrons safe during their stay. Incidents that occur as a result of the negligence of the ship or cruise company should never ruin a holiday, and those responsible should be held accountable for their actions.

In a recent federal appellate case, a three-year-old child was on a cruise with her family. While on an upper deck, the child climbed onto and fell from a guard rail onto the deck below, suffering serious head injuries. Although there were conflicting reports of how the accident occurred, the toddler allegedly placed her hands on the second course of the rail to sit on the lower course but lost her grip and slid through the gap. The child’s mother sued the cruise line on behalf of her daughter, arguing that the cruise line was negligent in the creation and maintenance of the guard rail and failed to warn of the danger posed. The district court ruled in favor of the cruise line, holding that there was no dispute of material fact, and that the ship did not owe a duty to the plaintiff. The plaintiff appealed.

On appeal, the circuit court reversed the lower court’s decision and sided with the plaintiff. The plaintiff argued that the guard rail posed a risk of injury to children, specifically because children were small enough to pass through the rails and fall to a lower deck. The appellate court agreed and stated that the cruise line owed a duty to protect the child from this specific type of injury. Additionally, based on expert testimony and other evidence, the court held that it was clear the ship had notice of the potential danger of the guard rail and had failed to act to cure the safety concern. Because the court found there was a genuine dispute of material fact present, the court remanded the case for further consideration.

Recovering from an Airline Related Injury in Florida

Published on: July 6, 2020 | by Friedman Rodman Frank & Estrada, P.A.

For some, flying is stressful. For others, it’s the beginning of an adventure. But everyone knows that when you get on a plane, there’s a certain amount of risk in traveling. However, no one expects to board a flight and leave with a physical injury. When an airline is responsible for injuring a Florida passenger, the airline may be accountable.

When an airline passenger suffers a physical injury while embarking or disembarking on a plane, the only available recourse is to sue the airline for recovery under the Montreal Convention, which trumps any state law claims the passenger could bring. The Convention requires that the passenger bring suit within two years of the date of arrival at the destination.

In a recent appellate case, a plaintiff was on a flight to London when he was accused of stealing a crew member’s bag. Although the bag was found later, the airline refused to let the plaintiff disembark the flight. The plaintiff was an older gentleman who recently had surgery on his leg and had not yet fully recovered. When the airline turned the man over to the authorities, he was marched around the airport to multiple locations while being forced to carry his luggage with no help. Despite showing obvious signs of exhaustion, pain, and distress, the plaintiff was never given an opportunity to sit down. After denying the accusations against him to a police officer, the officer told him he was free to go.

The Effect of a Product Recall on a Florida Product Liability Lawsuit

Published on: June 29, 2020 | by Friedman Rodman Frank & Estrada, P.A.

Every year thousands of individuals in Florida suffer serious injuries or death because of a defective product, food, or device. In some cases, manufacturers catch faulty products before they cause serious injuries; however, in the vast majority of cases, defective products are recalled after a significant amount of damage has occurred. Florida product recalls usually happen after a manufacturer or a government agency discovers that the product is inherently or unreasonably dangerous to consumers. Although some manufacturers voluntarily recall their products, some prolong the recall for as long as possible. However, manufacturers who issue recalls are not automatically held liable for the injuries that their product causes. Floridians who suffer injuries because of a defective product should contact an attorney to discuss their rights and remedies in these cases.

Typically, Florida product liability lawsuits are complex and require a thorough and comprehensive understanding of evidentiary and procedural rules. However, at their most basic level, these cases require a plaintiff to establish that the product was defectively designed, manufactured, or lacked appropriate warnings. Then a plaintiff must prove that they used the product as intended, but that the product was the proximate cause of their injuries. Finally, the plaintiff must show that they suffered an actual, compensable loss because of the defective product.

These cases often stem from defective medical devices, car parts, infant products, children’s toys, boats, pool equipment, and recreational vehicles. For example, recently, the United States Consumer Product Safety Commission issued a recall of a recreational off-highway vehicle (ROV). The recall involves certain Honda Pioneer side-by-side vehicles. According to the recall notice, the ROV poses crash and injury hazards because it can move or roll when it is parked. Currently, the company has not received notification that anyone has suffered injuries; however, they received notice that the ROV began moving while parked. They advised consumers to immediately stop using the product and contact an authorized dealer for their next steps.

The Implication of Voluntary Intoxication in Florida Third-Party Personal Injury Claims

Published on: June 25, 2020 | by Friedman Rodman Frank & Estrada, P.A.

The First District Court of Appeal in the State of Florida recently reviewed a trial court’s order denying a manufacturer a directed verdict in a Florida wrongful death claim. According to the court’s opinion, the company manufactured products containing a synthetic marijuana product, commonly known as “spice.” A warning was contained in the product that indicated it was unsafe for consumption by humans. A man purchased the product voluntarily consumed it, subsequently became impaired, and then drove his car into another vehicle. The man was sentenced to prison for his criminal conduct. The decedent’s representatives filed a wrongful death lawsuit against the manufacturer, arguing that the company was liable for their family member’s death.

At trial, the company filed a directed verdict motion and argued that they were not proximately liable for the death because the man’s intoxication was the sole cause of the decedent’s death. The trial court denied the motion, and the jury found in favor of the plaintiffs, attributing 65% of the fault to the company and 35% fault to the intoxicated driver. The company appealed the ruling arguing, again, that the impaired man’s criminal conduct was the sole proximate cause of the plaintiff’s injuries.

Proximate cause is a legal theory that imputes liability on a party when their actions set forth a sequence of events that led to an injury. Under Florida law, questions regarding proximate cause are left to the fact-finder; however, in some situations, a judge may address the issue where evidence suggests there is no more than one inference. Moreover, the Florida Supreme Court has found that when an actor’s behavior creates a dangerous situation, the law does not permit a jury to find a proximate cause where an unforeseeable, intervening act is responsible for the injuries. In some cases, plaintiffs may argue that third parties that create a dangerous situation could reasonably foresee that their negligence could set a chain of events in a motion that may result in injuries. However, Florida does not allow a jury to consider proximate cause in cases where the person responsible for the injuries is voluntarily impaired or purposely misuses a product.