Articles Posted in Personal Injury

Purchasers of used goods, such as appliances and cars, often buy from dealers subject to the condition that the items are being sold “As Is.” Does this provision in a sale agreement insulate the seller from liability for personal injuries caused by a defect? Probably not.

Sellers use “As Is” disclaimers with the intention and expectation of disclaiming all warranties, both express and implied. To be valid, the disclaimers must meet certain requirements such as being written and conspicuousness within the written document.

An “As Is” disclaimer is not an exculpatory clause. An exculpatory clause relieves a party of tort liability. Because exculpatory clauses relieve parties of exercising due care, they are looked upon with disfavor in most states, including Florida. To be enforceable, an exculpatory clause must be so clear and understandable that “an ordinary and knowledgeable person will know what he is contracting away.”

In Stuart v. Hertz Corporation, 351 So.2d 703 (Fla. 1977), the Florida Supreme Court decided that the Hertz Corporation, whose vehicle injured a woman in an accident, was liable for the injuries she sustained from medical negligence while receiving care for her original injuries, and that Hertz could not bring the doctor into the case to make him pay for the damage he caused.

The woman sued Hertz. Hertz, in turn, filed a third party complaint against the doctor, Stuart, seeking indemnification, i.e., that the doctor pay for the damage he caused. The woman’s motion to dismiss the third party complaint was denied, and the trial court’s order was affirmed on appeal in the Fourth District Court of Appeal. The Florida Supreme Court reversed.

The issue was framed by the Supreme Court as follows: Therefore, the issue before us is simply whether or not an active tortfeasor in an automobile accident may bring a third party action for indemnity against a physician for damages directly attributable to malpractice which aggravated the plaintiff’s injuries.

Although some lawyers think that the Hertz case set the standard in Florida for defendants being responsible for subsequent injuries, the rule was actually first stated in 1932, in J. Ray Arnold Corporation, etc. v. Richardson, 105 Fla. 204 (1932). That court held:

“Where one who has suffered personal injuries by reason of the negligence of another exercises reasonable care in securing the services of a competent physician or surgeon, and in following his advice and instructions, and his injuries are thereafter aggravated or increased by the negligence, mistake, or lack of skill of such physician or surgeon, the law regards the negligence of the wrongdoer in causing the original injury as the proximate cause of the damages flowing from the subsequent negligent or unskillful treatment thereof, and holds him liable therefor. Texas & Pacific Ry. Co. v. Hill, 237 U.S. 208, 35 S.Ct. 575, 59 L.Ed. 918.” At 135.

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The three most common toxic gases – hydrogen sulfide, carbon monoxide, and methane – can injure and kill, both slowly and instantaneously, at home and in the workplace. They are produced naturally. Where the potential exists, safety procedures and safety devices should be in place.

HYDROGEN SULFIDE: Known as sewer gas or stink damp for its rotten egg smell. Colorless and flammable, in high concentrations it can cause death in just a few breaths. It occurs naturally in crude petroleum, natural gas, volcanic gases, and hot springs, and also results from bacterial breakdown of organic matter.

CARBON MONOXIDE: This gas is odorless, colorless, impossible to see and taste. In low concentrations, CM causes flu-like symptoms such as headaches, dizziness, nausea and fatigue. At high concentrations, it is a killer. It is generated by gasoline powered equipment like motor vehicles, space heaters, gas stoves, and generators. Proper ventilation can reduce risk. In a 2010 Florida tragedy, five young teens were killed in a Hialeah motel room when a car was left running in an abutting covered garage. They were found dead in their room fully clothed. Tobacco smoke generates CM.
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Traumatic brain injury (TBI) is the term used to describe brain injuries caused by trauma. Common causes of TBI include motor vehicle accidents, sport incidents, and simple fall down accidents. Brain injuries can also be caused by chemicals, lack of oxygen (hypoxia), Tumors, infection, and stroke.

No matter the cause, the consequences of TBI can be devastating physically, emotionally, and financially. TBI is also one of the leading causes of death in the United States.

TBI is a complex injury with a broad spectrum of symptoms and disabilities, ranging from headaches, dizziness, memory loss, mood swings to coma and persistent vegetative state. Even mild symptoms of TBI can have life-changing consequences.

When TBI is caused by negligence, the victim may be able to recover compensation from the at-fault party for lost wages, loss of earning capacity, pain & suffering, loss of capacity to enjoy life, and past and future medical benefits, including attendant care. In addition, the victim’s spouse and dependents may be compensated for the impact of the injury on their lives.
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Florida Statute 768.0415 instructs that unmarried dependents of parents sustaining significant permanent injury through the negligence of others shall be compensated for damages including loss of services, comfort, companionship, and society.

The compensation for damages under this statute is not limited to minors. It includes adult dependents.
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