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Whether or not a Florida landowner is liable to a member of the public for injuries resulting from an accident on his or her property depends in large part on the status of the visitor at the time of the accident. The status will determine the landowner’s duty of care to the visitor.

The following outline lists the status categories recognized under Florida law and the duty owed to visitors under each category:

  • 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.

(Much of the information contained in this outline was gathered from a table created by Attorney Wilton H. Strickland.)
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In a previous blog, I wrote that Republicans in the 2010 Florida Legislature had designs on shifting the standard of proof in slip & fall cases to favor business establishments. Despite strong opposition from Democrats and the Florida Justice Association, the Republicans have accomplished their goal.

On Apri 14, 2010, Florida Governor Charlie Crist approved House Bill No. 689, effective July 1, 2010. The bill nullifies the holding in Owens v. Publix Supermarkets, Inc, 802 So. 2d 315 (Fla. 2001) and repeals 768.0710 F.S. The new law, which will be 768.0755, eliminates the burden on the defendant, after the plaintiff has established that his or her fall was caused by a transitory substance, to produce evidence that it exercised reasonable care under the circumstances. This is a major shift and one that will prove decisive in many slip & fall cases.
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In a previous blog, I wrote that the 2010 Florida Legislature was attempting to pass a law purposely crafted to reverse or limit the ruling in Kirton v. Fields, 997 So.2d 349 (Fla., 2008), the Florida Supreme Court case which held that pre-injury releases executed by parents on behalf of minors were unenforceable against the minor or the minor’s estate in a tort action arising from injuries resulting from participation in a commercial activity. Through the recent passage of CS for SB 2440, it appears that the legislature may have succeeded in limiting Kirton.

The bill authorizes natural guardians of minors to waive, in advance, claims for injuries or death arising from risks inherent in commercial motorsport activities such as motorcross and go-cart parks – the Kirton case involved a minor who died from an accident at a motorcross park. Kirton banned such waivers.

Significantly, and thanks to the tireless lobbying efforts of the Florida Justice Association, the bill does not shield the owners and operators of commercial motorsport facilities and sanctioned events from their own negligence.

The essential elements of the bill are:

  1. Waivers for minors relating to inherent risks associated with commercial motorsport activities are authorized;
  2. The execution of a valid waiver creates the presumption that the accident was caused by an inherent risk; and
  3. Clear and convincing evidence rather than just a preponderance of evidence must be demonstrated to overcome the presumption that the accident was caused by an inherent risk.

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The Port of Miami is one of the busiest cruise ship ports in the world. Thousands of passengers from around the world sail from its docks weekly. Many of these passengers become victims of cruise ship negligence, from food poisoning, to slipping and falling, to onboard sexual molestation. For those individuals thinking of bringing suit against any of the various Miami-based cruise line companies, the following basic considerations must be taken into account:

  1. The target defendant must be given written notice within six (6) months of the accident. This requirement will be contained in small print on the back of the cruise ticket. Failure to give this notice will bar further action against the ship owner. Given the harshness of this rule, it is advisable to send the notice by certified mail, return receipt requested. Better to be safe than sorry.
  2. The lawsuit must be filed within one (1) year of the accident. This requirement will also be contained in fine print on the back of the cruise ticket. It is enforceable. Many lawyers unfamiliar with this requirement have mistakenly concluded that Florida’s four year statute of limitations for negligence cases applies. It does not.
  3. Regardless of where the accident happens or where the victim resides, the venue of the case will be In Miami, Florida and the court with jurisdiction over the cause of action will be the United States District Court, Southern District of Florida. We recently settled a case against Royal Caribbean Cruise Lines involving an accident on the high seas involving a gentleman from Terra Haute, Indiana. The lawsuit had to be filed in the Federal Court in Miami.

Cruise ship negligence cases can be a trap for the unwary. This is a specialized area of law and a specialist should be consulted to handle the case.
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History was made today by the Florida Legislature. After remaining at the same level for 30 years, Florida’s sovereign immunity limits – i.e., the maximum amount government entities can be forced to pay to victims in personal injury cases* – were increased by the 2010 Florida Legislature from $100,000 per person/$200,000 per incident, to $200,000/$300,000. It’s about time! (See this previous blog for a further discussion on sovereign immunity laws.)

The bill awaits Governor Charlie Crist’s signature. If adopted, it will become effective in October 2011.

Although these arbitrary limits remain unreasonably low – in my opinion, there should be no arbitrary caps at all … cause the damage, pay the full price. Period. – the legislation is a move in the right direction. Kudos to the Florida Legislature. (Shock of all shocks, I never thought that I would be complimenting any legislative body controlled by Republicans, but credit should be given when due.)
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When the economy lags, like now, so do the amount of reported job-related accidents and workers’ compensation claims filed. I speak from the experience of handling claimants’ workers’ compensation cases for the past 23 years.

Employees fear being fired for having an accident on the job. In my experience, the fear is well founded. Accordingly, when jobs are scarce, employees are more hesitant to report accidents and injuries as compared to when jobs are plentiful.

In the mid- to late-1990s, the Clinton years, when the economy was booming and the next job was right around the corner, employees had little fear of reporting an injury, like a tweaked back – which could be a herniated disc – from heavy lifting or a twisted knee – which could be a meniscus tear or worse – from falling from a ladder. If necessary, employees hired lawyers to assert their rights under the law.

This is not so anymore. Not even close. I have noticed a decided decline in workers’ compensation cases over the past 4-5 years, especially the last 2-3 years. (This is not surprising given that, since December, 2007, the U.S. economy has shed more than 8 million jobs.)

As a result, many employees are failing to report and pursue benefits for serious injuries. The long term consequences of this can be profound. Serious injuries require medical attention and rest. Working through a serious injury is not always the answer. Injuries that fail to heal properly will only worsen over time, resulting in the need for greater medical care and the inability to maintain gainful employment in the future.

This is one of many negative consequences of a poor economy. Let’s hope that things improve soon.
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Our law firm was recently hired by a military veteran who claims to have been infected with the liver disease Hepatitis C by equipment used to perform colonoscopies at the Veterans Administration (VA) hospital in Miami, Florida.

Last year the VA acknowledged contamination issues with endoscopic equipment used to perform colonoscopies in its Miami facility between 2004 and 2009. It has notified more than 3000 patients of the potential for infection and recommended testing, one of whom is our client. To her great disappointment, she tested positive for Hepatitis C.

Although the VA admits to the contamination problem, it does not so readily admit to it being the cause of infection in every veteran who has been tested positive for the virus (or HIV; there have been reported cases of HIV infection). Because Hepatitis C, among serious and sometimes fatal medical conditions, is relatively easy to contract, the refusal of the VA to take responsibility for every case of infection is understandable. (However, shouldn’t there be a rebutable presumption in favor of the veterans that the virus was caused by the VA?)

We expect the government to conduct comprehensive discovery in our case in an effort to establish other risk factors, such as intravenous drug use, blood transfusions, promiscuous sex, etc. From past experience, we know that the government’s lawyers and even the FBI will attempt to look into every relevant aspect of our client’s history for evidence to blame for the infecton other than its contaminated equipment.
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In my 25 years of representing accident victims, I have found rotator cuff injuries to be about the most debilitating of all traumatic injuires for those employed as manual laborers. Unfortunately, it is a very common injury – for example, shoulder pain is second to back pain as the bases for workers’ compensation claims.

The rotator cuff is made up of 4 tendons, and they cover the top of the humerus. A rotator cuff injury involves a tear to one or more of these tendons. Tears can be full or partial thickness.

Tears can be acute, when a sudden force is applied to the shoulder, or chronic, which is deterioration over a long period of time. Common symptoms of acute tears include a tearing sensation, sudden pain, and sudden weakness. The symptoms of chronic tearing include gradual progression of shoulder pain and weakness, and difficulty sleeping on the affected side.

Rotator cuff tears are diagnosed clinically, by the orthopedist through examination, and by MRI. The best type of MRI to accurately diagnose the presence of a rotator cuff tear is the MRI arthrogram.

Treatment for rotator cuff injuries includes conservative care and surgery. Conservative care includes rest, non-steroidal anti-inflammatory medication (Motrin, Aleve, Celebrex) and physical therapy, and sometimes proves valuable with partial tears. Complete tears and partial tears that have not responded well to conservative care, usually will require surgery.
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Proving compensability of heart attacks and strokes under Florida’s workers’ compensation system has always been difficult. Even when the law allowed the award of “reasonable” carrier-paid hourly attorney’s fees to the successful Claimant’s attorney, whether or not to accept a case required serious thoughtful consideration. Now that Florida’s new attorney’s fee statute, Section 440.34 (effective July 1, 2009), drastically reduces Claimants’ attorneys’ fees, the practical financial viability of these cases for Claimants’ attorneys is in serious question.

Heart Attack and Stroke cases are fact-intensive, require numerous medical opinions, and involve several complex legal issues. This translates into time consuming and costly cases for Claimants’ attorneys.

The primary issue in these cases is whether or not the medical event was occasioned by a preexisting condition. The outcome will determine the type of evidence that is required to prevail, which is often the difference between winning and losing. If a preexisting condition exists, the Claimant must show that the heart attack or stroke was caused by unusual physical strain not routine to the type of work the employee was accustomed to performing. If no evidence exists of a preexisting condition, the Claimant need only show that the event was caused by any amount of exertion. See Zundell v. Dade County School Bd., 636 So.2d 8 (Fla. 1994).

As everyone knows, heart attacks and strokes are frequently occasioned by preexisting conditions.
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Compensation for pain and suffering is available in most types of accident cases. It is not available in Florida workers’ compensation cases.

Florida’s workers’ compensation system was instituted so that employees injured at work would not have to prove fault in order to receive benefits. Entitlement to compensation was to be as simple as proving that injuries resulted from an accident that occurred in the course and scope of one’s employment. In theory, at least, the system remains in place today.

In exchange for the creation of this no-fault system, injured employees lost the right to be compensated for pain and suffering. Injured workers’ are entitled to lost wages and medical benefits, but not compensation for pain and suffering.

Understandably so, this is a difficult concept for most lay people to comprehend. It is a concept that I must explain again and again to my workers’ compensation clients.

It is such a difficult issue, in fact, that I have devised an exercise to make the point. I begin by asking my clients, ‘how much money do you expect to receive in your workers’ compensation case for pain & suffering?’ Invariably, the answer is, “I don’t know.” I then ask them to close their eyes. Once this is done, I ask the question, “What do you see?” When the answer is “Nothing,” I tell them that nothing is exactly how much they will receive as compensation for pain and suffering in the workers’ compensation case. Point understood.
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