Florida Injury Attorney Blawg

Tourists and local recreational scuba divers who use the services of dive companies, may wish to take note of an event that happened to a diver in California.

A dive company was staging a dive near the oil rig Eureka in 2004 when the a diver surfaced 400 feet away from the vessel after having difficulty equalizing the pressure in his ears. He tried to swim back to the boat, but got leg cramps. No one noticed his absence and a dive master for the company marked him as present. The boat moved to a second site some seven miles away, and there the stranded diver was mistakenly marked as taking a second dive! More than three hours after the diver had been left behind at the first dive site, the crew realized he was missing and radioed the U.S. Coast Guard. The diver was eventually rescued miles away by a ship carrying boy scouts.

The diver sued the dive company. The jury was told that the diver had suffered post-traumatic stress disorder and got skin cancer from exposure. The jury returned a verdict in favor of the diver in the amount of $1.68 million for damages. The trial lasted 23 days.

Florida, although a worldwide mecca for diving, has very little on the books with regard to regulating the sport, and nothing at all focused on dive charters per se. This means that the rules regulating dive charters will mostly be controlled by common law, case made law. This will typically suffice, although it might be nice to have some hard, statutory guidance in place to address common dive charter situations, such as keeping tabs of who is on and and who is off the vessel.

Continue reading "California Example of Potential Florida Scuba Diving Accident" »

Adopted in 1920, Florida's dangerous instrumentality doctrine imposes strict vicarious liability upon the owner of a motor vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent operation causes damage to another. See Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 468, 86 So. 629, 637 (1920). As expressed in Southern Cotton Oil:

[O]ne who authorizes and permits an instrumentality that is peculiarly dangerous in its operation to be used by another on the public highway is liable in damages for injuries to third persons caused by the negligent operation of such instrumentality on the highway by one so authorized by the owner.

Over the years, the doctrine has been applied to golf carts, trucks, buses, tow-motors and other motorized vehicles. Meister v. Fisher, 462 So. 2d 1071 (Fla: Supreme Court 1984); See, e.g., Eagle Stevedores, Inc. v. Thomas, 145 So.2d 551 (Fla. 3d DCA 1962).

Does the doctrine apply to trailers that make up the semi, tractor-trailer rigs so common to our highways? To the surprise of many, including some lawyers, the answer is No. See Saullo v. Douglas, 957 So.2d 80 (Fla. 5th DCA 2007); Pullman v. Johnson, 543 So.2d 231 (Fla. 4th DCA 1987); Edwards v. ABC Transportation Co., 616 So.2d 142 (Fla. 5th DCA 1993).

Continue reading "Florida's Dangerous Instrumentality Law - Tractor/Trailer Rigs" »

Motor vehicle accident victims would be well advised to follow these basic suggestions, many of which are applicable to other types of accidents:

1. DO NOT give any statements, in writing or over the phone, to anyone about your car accident or injuries. This can even apply to your own insurance company, although caution must be taken here to avoid giving your insurance company an excuse for denying coverage. This condition is one reason why it is important to consult with a lawyer about your case as soon as possible. Car accident cases present countless landmines to those who are unaware of them.


2. Take photographs of your car before it is repaired. Save and give the photographs to your lawyer. If you are unable to take photographs, your lawyer should get it done.


3. Keep all receipts for any medical or pharmacy payments you make for injuries caused by your car accident.


4. Keep all receipts for any other out-of-pocket expenses incurred by you as a result of the accident.


5. Be sure to notify your treating doctors(s) about any prior car accidents, fall downs, workers' compensation claims, or injuries. Insurance companies will use any incorrect or mistaken statements to your doctors against you. If you do not recall your past accidents, just tell the doctor, "I don't remember," rather than guessing.


6. Keep your lawyer informed of all medical appointments.


7. Do not lose contact with your lawyer. Provide new addresses and phone numbers as soon as possible.


8. It is critical that you tell your doctor(s) about any and all pains and problems you are having. Too often, car accident victims feel that something is not worth mentioning, until it becomes worse. Unfortunately, insurance companies and juries will hold any delay in telling your doctors about your injuries against you.


9. Make sure you follow all of your doctors recommendations, including attending all physical therapy appointments, filling all of your prescriptions and having all MRIs done in a timely manner. If you have to cancel an appointment, please make sure to immediately reschedule it.


10. Lastly, make sure not to discuss your case with anyone other than your attorney or his/her staff. This includes posting information to Facebook and MySpace. Consider that the information you post to these sites will be discovered by the Defendant.

********************************
Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals - the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

Contact us today to schedule a free, confidential consultation to discuss your important legal matter.

By its decision in Vargas v. Enterprise Leasing Company (Case no.: SC08-2269; opinion issued on April 21, 2011), the Supreme Court of Florida has declared that car rental agencies, unlike regular citizens and other businesses, are not vicariously liable for accidents involving the vehicles they own. Score one for big business!

Rafael Vargas was rear-ended and injured in his car by a rental vehicle owned by Enterprise Leasing Company. Vargas sued Enterprise for personal injuries on the theory of vicarious liability. The trial court dismissed the case and the Fourth District Court of Appeal affirmed the judge's decision, inviting the Supreme Court to answer a question certified to be of great public importance:

DOES THE GRAVES AMENDMENT, 49 U.S.C. § 30106, PREEMPT SECTION 324.021(9)(b)2, FLORIDA STATUTES (2007)?

The Supreme Court accepted the invitation and answered the certified question in the affirmative.

At the urging of the Bush Administration, in 2005 the Republican-controlled Congress enacted the Graves Amendment. Proponents of the federal law sought to immunize rental agencies from laws in the various states which held them financially responsible for injury and death caused by their vehicles. One of those laws is/was Florida Statute Section 324.021(9)(b)2. Opponents argued that the Graves Amendment did not preempt the Florida statute. Hence, the stage was set for Vargas v. Enterprise Leasing Company.

Continue reading "Supreme Court of Florida Gives Free Ride to Car Rental Agencies" »

What are the rights of expectant parents for the death of a fetus from an incident like a slip and fall or medical malpractice? Surprisingly, because a fetus is not considered a person under Florida's Wrongful Death Act, Tanner v. Hartog, 696 So.2d 705 (Fla. 1997), neither parent may bring a claim for wrongful death or for loss of companionship. U.S. v. Dempsey, 635 So.2d 961 (Fla. 1994).

Because the law treats the death of a fetus as a physical injury to the mother, the mother may bring a personal injury action against the at-fault party. The action can include a claim for emotional injuries.

The viability of a father's claim for negligent infliction of emotional distress is far less certain. The answer depends, in part, on the mysterious and unpredictable "impact rule."

In Florida, whether a person may recover for emotional injuries is governed by the impact rule. Florida's impact rule provides as follows: "[b]efore a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress injuries must flow from personal injuries the plaintiff sustained in an impact. The rule actually requires some impact on the plaintiff, or, in certain situations, the manifestation of severe emotional distress such as physical inuries illness." Fla. Dep't of Corr. v. Abril, 969 So.2d 201, 206 (Fla. 2007)."

The rule was developed to limit "fictitious or speculative claims." Willis v. Gami Golden Glades, LLC, 967 So.2d 846, 850.

Continue reading "Florida Civil Law - Compensation for Loss of Fetus (Stillbirth) Due to Negligence" »

For too long, Florida employers and their workers' compensation insurance carriers have been able to accuse employees of insurance fraud without consequence if proven wrong. No longer.

Until the recent decision in Carrillo v. Case Engineering Inc./Claims Center, (Fla. 1st DCA 2-11-2011), employers and their insurance carriers were free to assert the so-called "fraud defense" without regard for any negative consequences. Accordingly, with nothing to lose and much to gain, namely, claimants losing the right to all benefits, combined with an absurdly low standard of proof, carriers have used the defense indiscriminately for many years. In far too many cases, the calculation has been simply to throw the defense on the wall and hope that it sticks. If nothing else, it was a way of leveraging injured workers to settle their cases for less than full value.

Carrillo has changed the no risk element of the defense.

One of the few ways in which injured workers (claimants) can be awarded attorneys fees against employers and their insurance carriers, a valuable benefit, is if "a carrier or employer denies that an accident occurred... and the claimant prevails on the issue of compensability." Florida Statute section 440.34(3)(c).

Continue reading "Finally, Insurance Carriers Face Consequences for Pleading Fraud in Florida Workers' Compensation Cases" »

Whether a person injured on real property owned or controlled by another will be successful in bringing a claim for damages, depends in large part on the injured person's status on the property at the time of the accident. The general categories and the duty owed under each are set forth in the following outline:

• Public Invitee. A person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. (Example: Child in a public park.) This landowner has the following duties: (1) to correct or warn of dangers that the owner knows or should know of by the use of reasonable care, and which the visitor cannot or should not know of by the use of reasonable care; and (2) to maintain the premises in a reasonably safe condition. (See my previous blog on this subject.)


• Business Invitee. A person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. (Examples: A grocery story patron; a paying fan at a Miami Dolphins football game.) Duty: same as for Public Invitee.


• Licensee By Invitation. A social guest. Duty: same as for Public Invitee.


• Uninvited Licensee. A person who chooses to come upon the premises solely for his or her own convenience without invitation either expressed or reasonably implied under the circumstances. (Example: teenagers partying in a parking lot owned by a business establishment.) Duty: To refrain from willful or wanton injury (e.g., to remove any concealed "traps" of which the owner has actual knowledge).


• Trespasser. A person who enters the premises without license, invitation, or other right, and intrudes for some definite purpose of his own, or at his own convenience, or merely as an idler with no apparent purpose, other than perhaps to satisfy his curiosity. Duty: same as for Uninvited Licensee.

Independent contractors injured on the premises do not fit squarely within any of these categories. As a general rule, one who hires an independent contractor is not liable for injuries sustained by that contractor's employees in their work. As the Supreme Court observed in Conklin v. Cohen, 287 So.2d 56, 60 (Fla.1973): if the owner is a passive nonparticipant, exercising no direct control over the project, he cannot be held liable.

A second line of cases bars the claims of independent contractors whose injuries were sustained while performing the independent contractor's specialized work. In Morales v. Weil, 44 So. 3d 173 (Fla. 4th DCA 2010), the contractor was hired to demolish a barn with a roof damaged by two hurricanes. The damage was obvious and included a hole through the roof that was visible to the employees. However, in the course of the work one of the employees fell through a weakened roof panel and was injured. The Fourth District reviewed the applicable law and affirmed a summary judgment for the barn owners. The Court concluded that "the [owners] were in no better position than the [injured contractor employee] to assess the level of danger that the job posed. Consequently, the [owners] owed him no duty to maintain the roof in a reasonably safe condition." Id. at 179.

Continue reading "Florida Premises Liability Law - Duty Owed to Independent Contractors" »

Vehicles like the Ford Bronco II, Ford Explorer and 15-passenger vans are designed with an unreasonable risk of rollover. Although there are many things manufacturers can do to prevent rollover accidents, rollover accidents will occur in vehicles considered safe. Knowing this, manufacturers should implement safety features designed to limit rollover accident injuries.

Although rollover accidents constitute 1.74% to 6.3% of all accidents depending on the type of vehicle involved, they account for 33% of all serious injuries and death.

Amazingly, the federal government does not require manufacturers to conduct rollover accident testing. The consequence of this is a gap in knowledge in how best to prevent rollover accident injuries and many vehicles lacking available equipment to optimally protect occupants in a rollover.

Continue reading "Limiting Injury in Vehicle Rollover Accidents" »

Florida civil litigation lawyers rely on a few basic Internet reference resources in almost every case. Some are free, others are not.

The free links include:

• Florida Statutes


• Florida Rules of Procedure


• Florida Standard Jury Instructions (Civil Cases)


• Florida Administrative Code


• U.S. Code


• Federal Rules of Civil Procedure


• Google Scholar (excellent for accessing case law)

Continue reading "Basic Internet Links for Florida Civil Litigation" »

Florida premises liability law is the body of law which makes the person who is in possession of land or premises responsible for certain injuries suffered by persons who are present on the premises. It is a negligence-based system, meaning that responsibility is apportioned in accordance with fault. This is known as the concept of comparative fault. See Florida Statute 768.81, entitled Comparative fault.

Under this system, the jury is charged with determing fault among the plaintiff, the defendant, and others who may not even be parties to the lawsuit. The jury must also place a monetary value on the damage sustained by the plaintiff. These two findings make up what is known as the [jury's] verdict.

A jury verdict is not the same thing as a final judgment. Only judges render final judgments.

In rendering final judgments, judges consider a variety of factors. The jury's findings regarding fault and damages are two of the most important factors.

A simple example, without consideration of any factors other than the jury verdict, will illustrate how the system works: Assume that Mr. Jones, a visitor to a friend's condominium, trips on a large crack in a poorly lit underground parking lot while walking into the building. He falls hard to the ground, landing on his chin and head, sustaining a severe laceration and a concussion. Fire Rescue is summoned and he is transported to the hospital. The building and lot are controlled by a condominium association that has hired a management company to maintain the premises. It is learned that the large crack has existed for years and caused many other accidents. Unable to settle his case out of court, Mr. Jones sues the condo association and the management company for negligence. The jury returns a verdict in the amount of $500,000, but apportions fault at 75% (condo. association/management company)/25% (Mr. Jones). Based on the concept of comparative fault, the final judgment for Mr. Jones will be $375,000, or 75% of the total damages found by the jury.

Until 1973, Florida applied the law of contributory fault in all negligence cases. Under this concept, the plaintiff would be barred from any recovery if it was determined that he or she was at fault in any way, even only 1%. In our example, this would mean that Mr. Jones, although only 25% at fault, would receive nothing for his injuries.

Continue reading "Florida Premises Liability Law - Interplay Between Comparative Fault and Open & Obvious Doctrines" »

When it comes to the civil justice system, the U.S. Chamber of Commerce is a hypocritical ass.

While the U.S. Chamber of Commerce spends millions of dollars and focuses immense resources on lobbying campaigns aimed at limiting regular consumers' access to the courthouse - the group's affiliate, the Institute for Legal Reform, works every day to add barriers and restrictions to the right of individuals harmed by corporations to file lawsuits against corporations - the National Chamber Litigation Center, the part of the organization charged with filing lawsuits on behalf of the group, annually initiates over 130 suits, more than 2 a week.

In October, 2010, Chamber President and CEO Tom Donohue explained that litigation is, "one of our most powerful tools for making sure that the federal agencies follow the law and are held accountable."

This quote from the President of the American Association of Justice sums up my feelings about the Chamber's rank hypocrisy on this subject: "The Chamber has every right to seek what it believes to be justice in a court of law, even if representing the most deplorable corporate interests. But it must learn that this right to justice belongs not just to their organization or big business generally, but to all Americans."

Perhaps the Chamber does not agree with the words of Abraham Lincoln, contained in the Gettysburg Address, that the United States is a nation "of the people, by the people, for the people...."
*********************************************************

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals - the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

Contact us today for a free, confidential consultation to discuss your important legal matter.

Our law firm (along with co-counsel firm Domnick & Shevin, LLP) is currently involved in litigation against the Enterprise car rental company.

In 2008, Enterprise rented a vehicle, in Miami, to a person whose Florida driver's license was under suspension for failing to appear in court on a number of motor vehicle moving violations. After his credit card was rejected, forcing him to leave the rental agency to obtain cash, he returned with the cash and presented a facially valid (although unlawfully obtained) Texas driver's license to the rental agent. Enterprise rented him the vehicle.

A few days later, the renter caused a high-speed rollover accident in the Enterprise vehicle on I-75 near Gainesville, Florida. Our client, a passenger in the vehicle, was airlifted to Shands Hospital with life-threatening injuries. She remains severely disabled, in great pain, and unable to work.

A quick and inexpensive (less than $1.00) Internet database search, based on name and birth date, performed by the Enterprise agent, would have disclosed the customer's license suspension and traffic record. However, since the agent was not instructed or authorized by Enterprise to perform such a search, one was not done.

We sued Enterprise on the theory that it negligently entrusted its vehicle to the at-fault driver. Enterprise claims that it did nothing wrong.

What is Enterprise's primary defense? Florida Statute 322.38(2).

322.38(2) provides as follows - No person shall rent a motor vehicle to another until he or she has inspected the driver's license of the person to whom the vehicle is to be rented, and compared and verified the signature thereon with the signature of such person written in his or her presence.

Enterprise argues that 322.38(2) is a safe harbor provision providing it with absolute immunity from fault, that despite the ease and nominal cost of determining the prospective customer's license status and driving record, its only responsibility to the public was to inspect the Texas driver's license and compare and verify the signature thereon.

The Plaintiff's (our client) position is that 322.38(2) is not a safe harbor provision extending absolute immunity to Enterprise or any other rental agency. Rather, it is a minimum standard established by the Florida Legislature to create some level of safety for those who travel on the streets and highways of the state, but it is not the only standard that can be considered by judges and juries to determine reasonable conduct under every circumstance.

It is simply not the Legislature's role to instruct companies how to conduct every aspect of their business. Those business decisions are left to the judgment of the companies, with the understanding, however, that poor decisions or worse can result in serious legal consequences.

Such is the scenario in our case. Enterprise did nothing more than the bare minimum. A judge and jury will now decide if this conduct was reasonable under the circumstances. We do not believe that it was, thus our claim for negligent entrustment. Clearly, Enterprise could have done more.

Continue reading "Florida Statute 322.28 - Safe Harbor or Bare Minimum for Rental Car Agencies?" »