South Florida Personal Injury Lawyers Blog

The Importance of Deciding Which Defendants to Name in a Florida Product Liability Lawsuit

Published on: July 26, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Florida product liability law is primarily based on strict liability. Strict product liability refers to a claim in which the plaintiff alleges that the product at issue was defective or unreasonably dangerous. The focus of these claims is on the product itself, and these claims do not require a plaintiff to show that the defendant was negligent in any way.

While strict product liability may seem like a straightforward doctrine to apply, determining which parties are subject to strict liability can actually be quite complicated. A recent state appellate decision illustrates the concept of successor liability as it pertains to the plaintiff’s strict liability claim against a rental car company.

According to the court’s opinion, the plaintiff was seriously injured when the rental car she was riding in was involved in a head-on collision. The vehicle was previously rented through National Car Rental Systems (NCRS); however, NCRS sold the vehicle to a private party years before the plaintiff’s accident. The plaintiff filed her claim against Enterprise rental car company because Enterprise eventually acquired NCRS’s rental car business after the NCRS assets were transferred several times through various companies in a complex series of transactions.

Unsecured Cargo Poses a Serious Danger to Florida Motorists

Published on: July 24, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Under Florida law, all motorists carrying any load must make sure that the load is secure. This law makes driving on Florida roads safer by ensuring that a motorist’s cargo does not shift during transport, fall onto the road, and cause a serious Florida car accident. However, not all drivers follow the rule, and some who try to tie down their cargo do not do a very good job. The result is hazardous. A recent case illustrates the risks unsecured cargo can pose, as well as the legal issues that may arise in a lawsuit against a motorist who fails to ensure they are transporting cargo safely.

According to the court’s opinion, the plaintiff was driving when, suddenly, she looked up and saw a mattress flying towards her vehicle. The plaintiff did what she could to avoid the mattress, but ended up crashing into a nearby barrier. Witnesses to the accident tracked down the truck that was carrying the mattress, and provided the truck’s information to law enforcement. The truck was towing a trailer with seven-foot sides.

Police officers stopped the truck and talked to the driver. The driver told police that he was not aware of any mattress in the trailer, but that there may have been a mattress back there. The motorist told police that he wasn’t sure about whether there was a mattress in the trailer because co-workers were responsible for loading and unloading the trailer.

The Importance of Expert Witnesses in Florida Personal Injury Cases

Published on: July 22, 2019 | by Friedman Rodman Frank & Estrada, P.A.

In a Florida personal injury case, the jury consists of six average citizens. Because of this, in some cases, the issues raised in the case may be beyond the common understanding of the jurors. In these cases, courts allow parties to call on expert witnesses to testify as to their opinions.

While not every case requires an expert witness, many personal injury cases can be made stronger with the presentation of an expert witness. In some cases, such as Florida medical malpractice cases, expert witnesses are almost always required due to statutory requirements. Regardless of the type of claim, expert witnesses can be extremely important, as is the decision on which expert to select in any given case. A recent state appellate opinion discusses why it is crucial for personal injury victims to thoroughly vet and interview all potential expert witnesses.

According to the court’s opinion, the plaintiff was sitting in her vehicle at a stop sign when the defendant crashed into the back of her. The plaintiff immediately began to experience pain in her head and neck, and was went to the hospital later that day. The plaintiff tried various treatments for her pain, but none were effective. Eventually, the plaintiff saw a doctor who told her that she had reached maximum improvement and that her symptoms were likely to continue for the rest of her life.

How the Doctrine of Negligence Per Se Helps Florida Accident Victims Prove Their Claims

Published on: July 18, 2019 | by Friedman Rodman Frank & Estrada, P.A.

In most Florida personal injury cases, the plaintiff must establish that the defendant violated a duty of care that was owed to the plaintiff, and that the defendant’s breach of this duty resulted in the plaintiff’s injuries. However, in some situations, Florida accident victims can utilize the doctrine of negligence per se to prove the first two elements of a negligence claim: duty and breach.

Negligence per se is a legal doctrine that results in a legal finding that the defendant acted negligently. For negligence per se to apply, a plaintiff must present evidence that the defendant violated a regulation, law, or statute that was passed to protect people in the plaintiff’s position. If a plaintiff is able to establish that negligence per se applies, the plaintiff must only prove that the defendant’s actions were the cause of their injuries. A recent state appellate decision illustrates a situation in which the court determined negligence per se applied.

The court explained the facts as follows: the plaintiff was driving when she looked up to see a mattress flying towards her car. The plaintiff tried to avoid the mattress, but in so doing crashed into a cement barrier. Witnesses to the accident were able to obtain the other vehicle’s license plate number, and police officers eventually caught up with that driver, who was towing a trailer.

Can an Injured Florida Worker Request a Change of Doctor?

Published on: July 16, 2019 | by Friedman Rodman Frank & Estrada, P.A.

When someone is hurt in a Florida workplace accident, they can pursue a claim under the Florida Workers’ Compensation Act. If approved, a workers’ compensation claim provides an injured employee with medical treatment and ongoing compensation for the time they are unable to work. Doctors have a critical role in a workers’ compensation case because many of the determinations that dictate whether a claim is approved, the amount of benefits an injured worker receives, and the length of time that benefits will be paid are in a doctor’s hands.

Given the importance that the selected doctor plays in the claims process, one question that frequently arises in Florida workers’ compensation cases is whether an injured worker can request a change in doctors. The answer, as is often the case, is “it depends.” Generally speaking, an employer is able to select the treating physician except in cases of emergency medical care. However, there are several situations in which a worker can choose their own doctor. Both, however, require that an employer drop the ball when it comes to an employee’s request.

The first scenario involves a situation where an employee requests medical treatment, but an employer fails to provide treatment within a reasonable amount of time. In this case, an employee can seek out their own care, pay for it, and then ask to be reimbursed by their employer.

Florida Court Discusses the Difference Between Two Common Product Liability Claims in Recent Slip-and-Fall Case

Published on: July 12, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this year, a state appellate court issued an opinion in a Florida slip-and-fall case in which the court discussed the difference between a plaintiff’s claim that the defendant landowner failed to maintain their property and a claim that a landowner failed to warn visitors about a known hazard. The case arose after the plaintiff slipped and fell on a portion of damaged sidewalk in the condominium complex where she lived.

Evidently, the plaintiff had lived in the complex for the past decade, and was familiar with the area where she fell. In fact, according to the court’s opinion, she regularly traversed the area without a problem. After her fall, the plaintiff filed a personal injury case against the complex, making two claims. First, the plaintiff asserted that the complex was negligent in failing to warn her of a known danger. Second, the plaintiff claimed that the complex was negligent for failing to maintain the property in a reasonably safe condition.

The complex’s main defense was that the plaintiff knew of the hazard, and that it was open and obvious. The complex argued that these facts should negate any potential liability and that the court should dismiss the case against it. The lower court agreed, finding that the hazard was open and obvious, and holding that the plaintiff assumed any risk of injury by crossing the area she knew to be hazardous.

Court Rejects Plaintiff’s Request to Seek Punitive Damages in Florida Nursing Home Wrongful Death Case

Published on: July 8, 2019 | by Friedman Rodman Frank & Estrada, P.A.

In June of 2019, a state appellate court issued a written opinion in a Florida wrongful death case discussing whether the evidence presented by the plaintiff was sufficient to warrant punitive damages against the defendant nursing home. Ultimately, the court concluded that, while the evidence showed “multiple appalling examples” of situations where nursing home staff “dropped the ball,” the staff’s negligence was not attributable to the nursing home.

According to the court’s opinion, the estate of a woman who died while in the care of the defendant nursing home brought a Florida wrongful death claim against the facility, claiming that the facility’s negligence caused of the woman’s death. After the initial complaint was filed, the estate sought leave to amend to add a claim for punitive damages. The lower court granted the estate’s request, and the defendant nursing home appealed.

On appeal, the lower court’s decision to allow the estate to seek punitive damages was reversed. The court began its analysis by noting that when a plaintiff seeks to leave to amend to add a claim for punitive damages, a trial court must determine whether “there is sufficient admissible evidence … to ensure that there is a reasonable basis to believe that the claimant, at trial, will be able to demonstrate … such damages [are] warranted.” The court added that a plaintiff could meet this burden by proving either direct liability or vicarious liability.

Who Can Be Held Liable in Florida Slip-and-Fall Accidents?

Published on: July 4, 2019 | by Friedman Rodman Frank & Estrada, P.A.

In March, a state appellate court issued a written opinion in a slip-and-fall case raising an interesting issue involving the liability of a security company. The case presents an interesting issue for Florida accident victims because it required the court to determine if the plaintiff could hold the defendant security company liable for injuries she sustained while at a shopping mall. Ultimately, the court concluded that the plaintiff could not do so because she was not a third-party beneficiary of the contract between the mall and the defendant security company.

According to the court’s opinion, the plaintiff and her husband were shopping at the mall when the plaintiff tripped and fell on a rubber mat. The plaintiff claimed that the mat was protruding from underneath a desk immediately before the secured entrance. At the time of the plaintiff’s fall, an employee of the defendant security company was sitting at the desk. The plaintiff’s husband took pictures of the mat after his wife’s fall, and it appeared to be curled up at the edges.

The plaintiff filed a premises liability case against several parties, including the security company. The defendant claimed that it owed her no duty of care because it did not control the area where the plaintiff fell and that the plaintiff was not a third-party beneficiary of the contract with the mall. That contract provided that the defendant would, among other things, “ensure that prompt action is taken to prevent or minimize losses, accidents, fires, property damages, safety hazards and security incidents.” The lower court granted the defendant’s motion for summary judgment, and the plaintiff appealed.

Can Florida Homeowners Be Held Responsible for a Guest’s Injuries?

Published on: June 28, 2019 | by Friedman Rodman Frank & Estrada, P.A.

As a general rule, Florida landowners owe those whom they allow or invite onto their property a duty to ensure that the property is reasonably safe. The exact nature of this duty depends on several factors, including the relationship between the parties and the nature of the hazards that are present on the landowner’s property. When a landowner violates this duty, and a guest is injured as a result, the guest may be able to pursue a claim for compensation against the landowner. A recent case decided by a state appellate court illustrates the type of evidence a social guest must present to recover from a landowner.

According to the court’s opinion, the plaintiff was a guest at a birthday party that was held at the defendant’s home. The defendant, however, was not the host of the party, and had allowed a friend to host the party at his home. When the plaintiff arrived at the party, she walked around the side of the house down to the backyard where the party was being held. As she made her way down a set of stairs, she tripped and fell. After her fall, she saw that there was an orange extension cord running across the steps. The defendant also stated that there were a lot of people inside the home at the time of her fall.

The defendant admitted that he was doing yard work earlier that day, but explained that all of his tools were gas-powered and that he did not use extension cords. He did, however, acknowledge, that he owned several orange extension cords. The defendant also explained that he left his home before the party started and arrived after the plaintiff’s fall, and that he had no knowledge of how the cord got there or who put it there. The plaintiff filed a premises liability case against the defendant, arguing that he was negligent in the maintenance of his property, which resulted in her injuries. The defendant unsuccessfully moved for summary judgment and filed an appeal.

Can Online Retailers Like Amazon Be Held Liable for Dangerous Products Sold in Florida?

Published on: June 26, 2019 | by Friedman Rodman Frank & Estrada, P.A.

E-commerce is responsible for a growing share of all retail sales. As a general matter, when a dangerous product injures a consumer, any company in the supply chain can be held liable through a Florida personal injury lawsuit. A recent federal appellate court decision clarifies the situations in which large online retailers can be held responsible for products that are sold on their sites.

According to the court’s opinion, the plaintiffs’ purchased a hoverboard on Amazon.com (Amazon). The hoverboard was sold on Amazon’s website, but was sold by a third-party seller. Neither Amazon nor the third-party seller manufactured the hoverboard. However, there was conflicting evidence whether the item was sold through Amazon’s “fulfilled by Amazon” (FBA) program.

The FBA program was essentially a drop-shipping agreement by which third-party sellers would pay Amazon and send their products to an Amazon warehouse. When an item was purchased, Amazon would ship the product. Aside from storing and shipping the product, Amazon had no role in selling the product, including setting the price or advertising the hoverboard, and never took ownership of the item. The hoverboard arrived in an Amazon box, and the plaintiffs believed that Amazon sold it. There was also conflicting evidence regarding whether Amazon retained payment for the hoverboard.