Sanders v. Erp Operating Ltd. P’ship - Florida Premises Liability Case Weighed

February 26, 2015

Generally speaking, our laws don't allow one party to be held liable for the wrongdoing of another. However, when it comes to premises liability - in particular, negligent security - there are numerous examples of property owners held liable for criminal acts committed on site. securitygate.jpg

In negligent security claims, the crux of the argument is the criminal attack/injury would not have occurred but for a property owner/manager's failure to secure the site or provide protection for plaintiff, as they had a responsibility to do.

This was the allegation in Sanders v. Erp Operating Ltd. P’ship, considered recently on appeal by the Florida Supreme Court. Although a trial court ruled in favor of plaintiffs, the 4th DCA reversed. The Florida Supreme Court reversed again, finding plaintiffs' proof of causation sufficient.

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Florida Supreme Court Strengthens Liability Waiver Defense

February 20, 2015

The Florida Supreme Court recently ruled in favor of the decision by the 5th District Court of Appeals to uphold the validity of a release of liability waiver signed by a plaintiff who was later injured.

In so doing, the state high court cast aside the rulings of the four other appellate courts in the state, which had decided in other cases to make it tougher for defendants to use waivers as a defense. gavel21.jpg

This is not great news for injured plaintiffs. However, it does not mean liability waivers will now totally absolve individuals or companies from negligence or that these waivers should go unchallenged.

Still, it may be a tougher hurdle to overcome in the wake of the high court's ruling in Sanislo v. Give Kids The World, Inc.

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Florida Bicyclist Wins Right to Ride in Full Lane

February 12, 2015

The vitriol against bicyclists by motorists is such that even when they abide by the law, they still may be targets of harassment, road rage and, all too often, hit-and-runs.

However, one South Florida man who commutes to work on his bicycle, didn't expect to be ticketed by police while he operated his bicycle defensively - and lawfully. Yet that's reportedly what happened recently in Lee County.

The cyclist was ticketed last fall for "slow bike, failure to ride to right curb." At the time, the rider was cycling in the full lane as he biked to his office in North Fort Myers. That was the first time he received a ticket, though he revealed on at least four previous occasions, deputies had stopped to order him to move over to the right.

It's an important case in a state where not only cycling is increasing, but also where it remains one of the most dangerous activities. The National Highway Traffic Safety Association reported a six percent increase of pedalcyclist fatalities from 2011 to 2012, with Florida having the highest rate of cycling deaths in the country.

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Brown v. Pennicook - South Florida Crash Victim Wins $1.8M in Damages

February 6, 2015

A Florida driver who suffered serious injuries in a 2009 auto accident in Hollywood was recently awarded $1.8 million in damages against the at-fault driver's insurer by Broward Circuit Court jury, following a six-day trial. crash5.jpg

In Brown v. Pennicook, defense fought hard against the notion plaintiff's injuries were caused by the crash. Instead, defense focused intensively on an old work-related shoulder injury, a pre-existing degenerative condition and the assertion by one doctor that crash-related injury was nothing more than a sprain that didn't even necessitate surgery.

Plaintiff presented expert witness testimony from a radiologist, two pain management doctors and two neurosurgeons. Each contributed to his position that the injuries he sustained were severe, that he required surgery and pain injections in the past and that he was likely to require long-term medical care and pain management.

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Florida Hit-and-Run Crashes Up 32 Percent

January 30, 2015

In Dania Beach, a man stands accused of killing an 8-year-old boy and seriously injuring his 14-year-old brother before fleeing the scene. Authorities found the 22-year-old after he reportedly attempted to have the vehicle repaired at an auto body shop. He has since been charged with one count of leaving an accident scene involving death, one count leaving the scene of a crash involving serious bodily injury and one count of tampering with physical evidence.

Despite a new Florida law that increased penalities for hit-and-run drivers, raising the punishment for those charged leaving the scene of an injurious or fatal crash, cases like the one in Dania Beach continue to proliferate.

That's according to new figures released by the Florida Highway Safety and Motor Vehicles. The agency reports, in the most recent data available, that there were 15,600 crashes in 2013 in which drivers fled the scene of a crash. Many of those were simple fender-benders, but that figure includes deadly crashes too.

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South Florida Judge: Punitive Damages Ok'd in Paralyzing Crash Case

January 20, 2015

A judge overseeing the product liability case against a vehicle manufacturer whose alleged acceleration problems led to a paralyzing crash has approved a plaintiff request to seek punitive damages.
What that means is the former University of Central Florida student whose injuries rendered him quadriplegic could potentially receive somewhere between $135 million to $180 million if he's successful in his case. That's roughly 10 times what he could have received had Palm Beach Circuit Court Judge Meenu Sasser not approved the request.

The man now requires around-the-clock care - and will for the rest of his life. But the greater factor concerning why those additional funds are warranted has to do with the alleged actions of the auto maker. After all, punitive damages are intended to serve as punishment to a liable defendant.

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New Florida Child Car Seat Law in Effect Jan. 1, 2015

January 14, 2015

Parents of 4- and 5-year-old children, take note: As of Jan. 1, 2015, you are in violation of the law if your child is in a moving motor vehicle without being strapped to a child car seat or booster seat.
A new child car seat law took effect at the start of the year, with the aim of reducing the number of child injuries and fatalities attributed to car accidents.

The Florida Highway Patrol reported according to preliminary figures, five children died and another 145 were injured in wrecks due to improper or no child safety restraints last year.

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Star Indemnity v. Morris - Boating Injury Prompts Nonjoinder Insurance Dispute

January 8, 2015

The Florida Fish & Wildlife Conservation Commission reports an average of 420 boating injuries every year in Florida, ranging from cuts and bruises to broken bones and serious head, neck and spinal injuries.
While many news reports focus on injuries suffered by individuals who fall or are tossed overboard, those who suffer falls inside the vessel may sustain equally severe trauma. Depending on the circumstances, there may be grounds to pursue a personal injury lawsuit against the owner and/or operator of the vessel in which the injury occurred.

One such case recently before Florida's Third District Court of Appeal, Starr Indemnity & Liability Co. v. Morris, deals with the kind of insurance wrangling that can spin out of cases like these. It serves as yet another example of why it's critical to secure the aid of an experienced legal team before pursuing such a case.

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Holiday Shopping May Give Rise to Premises Liability Claims

December 24, 2014

While it's true an increasing number of people are carrying out their holiday shopping online, there are still scores of people who venture out to the brick-and-motor stores to purchase their goods.

On Black Friday 2014, retailers reported holiday shopping at physical stores topped $50.9 billion. That was down about 11 percent from $57.4 billion a year ago, but it's still significant.

When stores invite people onto their property to shop and engage in transactions, they also owe a responsibility to ensure those guests are safe. In legal terms, these patrons are referred to as "business invitees," and stores owe them the highest degree of care in ensuring the property is safe and free of any defects or dangers not blatantly obvious to those entering.

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Holidays Increase Car Accident Risk

December 20, 2014

On Christmas Eve, 2013, a mother and grandmother anxiously waited for a 9-year-old girl to arrive. Her father was to bring her over, and they planned to make gingerbread houses and set out cookies for Santa.
But the little girl never made it. Her father, 27, was drunk, lost control of the vehicle and smashed into a tree. The roof of the vehicle was crushed. It took rescue crews 45 minutes to extricate him from the vehicle. It was only then they realized the 9-year-old girl in the back seat. She was pronounced dead at the scene. Her father's blood-alcohol content was 0.137 percent - well above the legal limit of 0.08 percent.

He was recently convicted in Illinois of aggravated DUI resulting in death, and sentenced to three years in prison. The guilt that follows him, no doubt, will be a lifetime sentence.

Our Fort Lauderdale drunk driving accident lawyers understand no matter what criminal or civil penalties a drunk driver receives, it will never make it totally right. Still, pursuit of personal injury and wrongful death cases is sometimes financially necessary and often helps families to receive a modicum of closure.

The holidays are a tough time for anyone who has suffered loss, but it's especially difficult when this time of year marks the anniversary of such a devastating tragedy. The U.S. National Institute on Alcohol Abuse and Alcoholism reports 40 percent of traffic-related deaths on both Christmas and New Year's involve driver's who are drunk. This is 12 percent higher than during the rest of December.

Many people are on vacation. They are gathering with friends and family. Alcohol is often a part of these functions. But such beverages must be consumed responsibly, especially if one plans to get behind the wheel.

While law enforcement ramps up enforcement around these holidays, the NIAAA and other traffic safety advocacy organizations are pushing for an increased awareness about how quickly one's judgment and driving ability can be impaired.

The NIAA conveyed the following facts in a recent advertisement:

--Alcohol acts quickly. It interferes with one's judgment, coordination and ability to drive long before any obvious signs of physical intoxication appear. The initial energy surge people experience when drinking is deceptive. The reality is, continued alcohol consumption will significantly slow reaction time.
--The effects of alcohol are lasting. It enters the bloodstream and will subsequently impact the body for many hours after consumption. When someone drives late at night after drinking, the sedative effects of the drug are compounded because people are instinctively more tired at night.
--Caffeine is not going to help. It doesn't counteract the affects of alcohol or help anyone make better decisions. The only thing that will bring on sobriety is time.

While everyone metabolizes alcohol differently, a general rule is to have no more than one alcoholic drink per hour, and to make every other drink a non-alcoholic one.

When people leave holiday functions impaired, they are not setting out to hurt anyone. But lack of bad intent means little to a parent who has lost a child.

Our Fort Lauderdale accident lawyers are experienced in guiding drunk driving victims through all possible legal options.

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Florida Dram Shop Law Doesn't Bar Drunk Driver Injury Claims

December 10, 2014

For some, it rattles the conscience to think a drunk driver or his survivors could sue someone else for his involvement in a crash.
However, there are some instances where the argument for this is legally sound. Some cases may involve Florida Dram Shop laws. In other instances, it may be rooted in a simple theory of general negligence.

In any case, an injured driver who was impaired at the time of a crash is going to face an uphill battle to prove the cause of the crash and to limit his own personal liability for what happened.

Our experienced Fort Lauderdale DUI injury lawyers know such claims are going to be complex and require the assistance of an experienced legal team.

One of the scenarios in which such an assertion can make good legal sense is if the impaired driver did not cause the crash. It may not be the most common situation, but it is possible. One example might be if an impaired driver is struck by someone who runs a stop sign. Or perhaps the other driver is impaired too.

The bottom line in these cases is a person is not barred from recovery of personal injury damages in Florida simply because he or she was intoxicated. What will likely come into play is the issue of comparative fault. F.S. 768.81 outlines comparative fault. It grants an injured person the ability to recover damages from someone else, even if the injured person shared part of the blame for what happened. The degree of comparative fault will then be factored in to the ultimate amount of compensation, if plaintiff is successful.

So for example, that impaired driver struck by the stop sign runner: If he wins at trial and the jury awards him $200,000, but the jury assigns him 40 percent comparative fault, he's only going to be able to collect $120,000 in damages.

Other cases brought by drunk drivers may include the Florida dram shop statute, codified in F.S. 768.125. The law says third parties who legally supply alcohol to someone can't be held responsible for injury that person causes as a result of consuming that alcohol. Exceptions are made, however, when the seller furnishes alcohol to someone who is either underage or known to be habitually addicted to alcohol.

Usually, this law is used by victims of drunk drivers to file action against the bar who supplied the at-fault driver alcohol. But in Florida, it can sometimes be used by the impaired driver to pursue damages. For example, if an underage driver is served an excessive amount of alcohol and is subsequently injured in a crash, he or she may have grounds to sue the bar as well.

Some states expressly forbid this kind of recovery. In Georgia, for example, the state's dram shop law specifically states an impaired driver can't collect damages from the person or entity that furnished the drinks. This was recently reaffirmed in Dion v. Y.S.G. Enterprises, Inc., a case before the Georgia Supreme Court. There, the court ruled the widow of a drunk driver who was served alcohol for eight hours straight - even after he was visibly intoxicated, as forbidden by law - could not succeed in a lawsuit against the bar because of the provisions in state dram shop law.

In Florida, however, it continues to be worthwhile for all injured crash victims to explore legal options with an experienced attorney.

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Courts Deal Harshly With Evidence Spoliation in Injury Cases

December 5, 2014

There is an old saying: "the truth speaks for itself."

In a court of law, that isn't exactly the way it works. The truth matters, of course. But what matters equally is what can be proven. For personal injury victims, this means you must have two things: An attorney who can effectively present the truth about your case to the court and ample evidence to back your assertions.

Because evidence is so critical, there may be some incentive for one side or the other to "lose" critical elements of it. Sometimes, it's an accident. Other times, it's intentional. This is called spoliation of evidence, and regardless of the intent, the courts will deal with it harshly.

In Florida, courts have consistently held when spoliation occurs, sanctions are appropriate. Some possible sanctions for the loss of important evidence may include:
--Exclusion of expert testimony
--Imposition of an evidentiary presumption in the disadvantaged party's favor
--Dismissal of a claim (if plaintiff caused spoliation)
--Entry of default judgment on the issue of liability (if defendant caused spoliation)

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