South Florida Personal Injury Lawyers Blog

Court Dismisses Appeal Due to Plaintiff’s Failure to Plead Alternative Theory of Liability Below

Published on: September 14, 2017 | by Friedman Rodman Frank & Estrada, P.A.

When a plaintiff files a Florida personal injury claim, it is imperative that they name all of the potentially liable parties and include all of the relevant theories of liability as soon as practicable. This often means conducting a thorough investigation prior to filing the lawsuit in order to make sure that a plaintiff has all of the information to properly file a case. Of course, it is possible to amend a complaint after it is initially filed for a short time; however, if a plaintiff waits too long to amend a complaint, they will be stuck with what was initially pleaded.This can create several problems for Florida personal injury plaintiffs. For example, the trial judge can only instruct the jury on the allegations contained in the plaintiff’s complaint. Thus, even if a plaintiff uncovers evidence during the trial that may help them prove liability through an unpleaded theory, they may be prevented from doing so. A recent premises liability case issued by a state appellate court illustrates how exacting appellate courts can be when interpreting the allegations of a plaintiff’s initial complaint.

The Facts of the Case

The plaintiff was an investor looking to buy a rental property through the defendant realtor. One of the defendant’s listings was a home that had a pool in the back yard. The defendant contacted a pool maintenance company and performed the necessary maintenance to the pool prior to listing the home.

Court Determines Business Was Not Liable for Accident Caused by Delivery Driver

Published on: September 11, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, an appellate court in Georgia issued a written opinion in a car accident case that will be of interest to South Florida car accident victims because it illustrates the limits of the doctrine of vicarious liability. Vicarious liability is a legal doctrine that allows a plaintiff to hold a third party responsible for the negligent acts of another party. The classic example of vicarious liability is when an employee causes an accident while working for his employer, and the accident victim seeks to hold the employer liable for the employee’s negligence.In some cases, if an employee negligently causes an accident while acting within the scope of his employment, anyone injured in that accident may seek compensation not just from the employee but also from the employer. However, the burden rests with the accident victim to prove that the relationship between the parties is sufficient to establish legal liability. Generally speaking, this means showing that the person who caused the accident was actually an employee and was acting within the scope of their employment. The case mentioned above illustrates how courts analyze these claims and which types of evidence courts may consider when determining if a person is an employee.

The Facts of the Case

The plaintiff was involved in a car accident with a delivery driver who was working for the defendant. The plaintiff filed a personal injury case against the driver of the vehicle as well as the company that hired him.

Pre-Suit Requirements in Florida Personal Injury Cases Naming Government Defendants

Published on: September 7, 2017 | by Friedman Rodman Frank & Estrada, P.A.

When someone is injured due to the negligence of a Florida government employee or entity, they may be entitled to monetary compensation through a Florida personal injury lawsuit. However, lawsuits that are filed against government defendants in Florida have certain additional requirements that must be met, or the accident victim risks the court dismissing their case before it is heard.In Florida, accident victims must file a pre-suit notice to the government agency that they are naming as a defendant. According to Florida Statutes section 768.28, state and local governments in Florida must be served with a pre-suit notice of a claim within three years of the accident. This notice must contain information about the accident, such as where it occurred, who was involved, the alleged acts of negligence, and what is being requested. If a pre-suit notice is not filed or is insufficient, a court may dismiss any subsequent lawsuit. A recent appellate court opinion out of Georgia details one plaintiff’s experience with an inaccurately drafted pre-suit notice.

The Facts of the Case

The plaintiff was injured when he stepped in an uncovered manhole while walking on a paved street in the defendant city. Initially, the plaintiff reported the hazard to the police department and provided the department with the address of 425 Chappell Road. The plaintiff explained to the police that the uncovered manhole was at the intersection of Chappell Road and Mayson Turner Road.

According to Recent Study, Florida Ranks Among States with the Worst Drivers

Published on: September 4, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Florida has long had a reputation for being a state with a large number of “bad drivers.” Indeed, Florida drivers are involved in over 250,000 auto accidents each year, with over 100,000 of those accidents resulting in serious injuries. In all, Florida car accidents are responsible for approximately 1,800 fatalities each year.It may come as no surprise, then, that according to a study released earlier this month, Florida ranks among the states with the worst drivers in the country. The study took various variables into account, including the total number of drivers, the number of DUI accidents, the number of traffic tickets issued, the total number of traffic fatalities, and the number of uninsured drivers. After all of the data was analyzed, Florida was ranked as the state with the worst drivers.

Interestingly, one key variable that stuck out when looking at Florida driver data was the unusual number of internet searches for “speeding tickets” and “traffic tickets.” Presumably, if a motorist is researching traffic tickets, they have recently been issued a ticket or warning by a police officer. Florida also had the second-highest rate of uninsured drivers in the nation, second only to Oklahoma.

Florida’s Assumption of the Risk Doctrine

Published on: August 30, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Assumption of the risk is a common defense used by many defendants in Florida personal injury cases. When it applies, the doctrine prevents a plaintiff from pursuing a claim against a defendant if the plaintiff was engaging in a dangerous activity for which the risks were known. For example, a football player may be prevented from suing another player based on injuries received on the field because the injured player likely knew the risks involved with playing football but continued to play nonetheless.In Florida, strict assumption of the risk is very limited. In fact, pursuant to a recent case decided earlier this year, the doctrine only applies when there is an express contract not to sue or in the context of contact sports. That being said, the doctrine of assumption of the risk can still work against a Florida personal injury plaintiff because a jury can take a plaintiff’s assumption of the risks involved in an activity into account when determining the relative fault of each party.

A recent case illustrates how courts apply the assumption of the risk doctrine. While Florida’s law is different from that applied in the case, the case is still instructive to Florida personal injury plaintiffs because the division of fault between the plaintiff and the defendant is an issue for the jury to determine.

Establishing Causation in South Florida Car Accidents

Published on: August 24, 2017 | by Friedman Rodman Frank & Estrada, P.A.

There are several elements that a plaintiff must establish before they are able to recover financially after a South Florida car accident. One of these key elements is causation. Simply stated, the causation element requires a plaintiff to prove that the defendant’s conduct was the legal cause of their injuries, or, to use the legal terminology, the “proximate cause.”There is not an exact definition of the term proximate cause, and determining whether a defendant’s actions constitute proximate cause is normally left up to a jury. However, in some situations, a court may determine whether proximate cause exists as a matter of law through a summary judgment proceeding. Whether being decided by a judge or jury, the question is whether the defendant’s actions more likely than not “foreseeably and substantially contributed to the plaintiff’s injuries.” Importantly, proximate cause does not need to be the only cause of an accident.

A recent personal injury case illustrates how one state court’s causation analysis resulted in the dismissal of a car accident victim’s case.

When Can an Injured Employee Seek Compensation through a Workplace Injury Lawsuit?

Published on: August 21, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Workplace injuries occur frequently in many professions, and this is especially the case for jobs in the construction and manufacturing industries. When a worker is injured on the job, there are several potential avenues that the worker can pursue to obtain compensation for their injuries.The first option is a workers’ compensation claim. Florida workers’ compensation claims are filed by an injured employee against an employer for an injury that occurred on the job while they were acting within the scope of their employment. If they are successful in a workers’ compensation claim, an injured worker can obtain temporary or permanent benefits while they are unable to return to work. However, once a worker is able to return to work, the benefits cease. Additionally, compensation for pain and suffering due to the accident will not be available through a Florida workers’ compensation claim. However, if a workers’ compensation claim is available to an injured worker, that will be his sole remedy, meaning that he will not be able to pursue compensation through a Florida personal injury case.

Workers who are injured due to the fault of a third party (i.e., not their employer) can seek benefits through a Florida personal injury claim against that negligent third party. If they are successful in a Florida personal injury case, an injured worker can recover compensation for medical expenses, lost wages, and any pain and suffering they endured as a result of the accident. A recent case illustrates how an injured employee unsuccessfully attempted to hold a third party liable for his workplace injuries.

The Importance of Pre-Trial Evidentiary Rulings in Florida Personal Injury Cases

Published on: August 17, 2017 | by Friedman Rodman Frank & Estrada, P.A.

The judge’s primary function in a Florida personal injury case is to make sure that the trial follows all of the applicable rules, both substantive and procedural. One of the most important tasks a judge performs is determining which evidence is admissible and may be considered by the jury. Indeed, in many cases, powerful evidence that could change the outcome of a case is not admitted for a variety of reasons.Evidentiary issues are normally handled in pre-trial motions, before the jury is empaneled. This way, the jury is not at risk of hearing any of the contested evidence, should the judge determine that it is not admissible. These pre-trial motion hearings can be critical to a Florida personal injury case, since they often determine the path a case will take. For example, if a plaintiff is able to get a pre-trial ruling admitting favorable evidence, the defense may consider settling the case rather than taking the chance of proceeding to trial.

In a recent Florida appellate opinion, the court discussed which evidence should have been admitted in a car accident case.

The Use of Expert Witnesses in Florida Personal Injury Cases

Published on: August 14, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Florida personal injury cases are routinely decided by a jury, unless both parties agree that a judge should hear the case. When a jury is empaneled, it should be representative of the community where the case will be heard. Almost always, juries consist of laypeople, meaning that the individual jurors have not been schooled on the law or how it applies to a given case. The judge’s job is to assist the jury by providing instructions on what the ultimate question in the case is and what the jurors should consider in making their determination.In some Florida personal injury cases, confusing scientific or medical issues arise. In such cases, an expert witness may be required to explain to the jury certain principles or concepts. An expert witness is usually a professional in the field at issue who has specialized knowledge through experience or education. In many Florida personal injury cases, each side presents their own expert witness in hopes of persuading the jury. There are complex rules regarding the admissibility of expert testimony; however, once testimony is admitted, it is up to the fact-finder to determine how convincing the testimony is. A recent case illustrates the difference between admitting evidence and assigning the evidence weight.

The Facts of the Case

The plaintiff was driving along the highway, about to pass a Department of Transportation vehicle that was pulled off to the side of the road. As she passed, she heard a loud noise. The next thing she knew, her car was upside down and sliding along the roadway. The plaintiff sustained serious injuries as a result of the accident, and she filed a personal injury lawsuit against the Department of Transportation, as the employer of the driver who was alleged to have pulled out in front of her.

Florida Appellate Court Finds Hotel Did Not Have a Duty to Erect Barriers To Keep Traffic Out of Pool Area

Published on: August 10, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, an appellate court in Florida issued a written opinion in a tragic Florida car accident case that claimed the life of the plaintiff’s pregnant wife. The case involved the question of whether a road-side hotel had a duty to prevent traffic from a nearby road from entering the hotel’s pool area in the event of an out-of-control vehicle. Ultimately, the court concluded that the hotel did not have a duty to prevent this type of accident, and it dismissed the plaintiff’s case.

The Facts of the Case

The plaintiff and his pregnant wife were sitting poolside under a cabana while staying at the defendant hotel. While the couple was under the cabana, a drunk driver lost control of her vehicle, jumped a curb, and came careening into the hotel’s pool area. The car crashed into the cabana, killing the plaintiff’s wife and injuring the plaintiff.

The plaintiff filed a personal injury lawsuit against both the driver of the car as well as the hotel. The plaintiff presented evidence that it was common for motorists to speed on the road on which the hotel was located. An engineer testified that, due to a curve in the road, at some point, vehicles traveling along the road are directly facing the pool area. The plaintiff argued that, given these facts, the hotel should have taken additional precautions to prevent this type of accident.