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.
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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.
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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."
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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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Colombo v. BRP US, Inc. - Boat Injury Verdict Upheld

November 30, 2014

Water recreation is one of the primary draws for Florida vacationers. However, there is a lot that can go wrong when it comes to motorized watercraft.
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Consumers trust that when they get on a boat or jet ski, the machine will work as intended and will not be unreasonably unsafe for use. Unfortunately, not all manufacturers and distributors adhere to strict safety guidelines.

There is also a high potential for operator error, particularly given the lax standards and enforcement for Florida boat licensing and commercial water craft operation.

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Child Hotel Injury Lawsuit Will Proceed to Trial

November 25, 2014

A five-year-old child vacationing with his family suffers a serious fall from a hotel window, causing him to incur critical, debilitating injuries, including brain trauma.
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Who is responsible?

A California appellate court recently granted the family the right to present a case at trial that the hotel was responsible for negligence and failing to address a known dangerous condition on its property. This was a reversal of an earlier trial court summary judgment favoring defendants, who argued they had no duty of care to the child and the accident was caused by parents' failure to supervise, rather than its own failure to install a fall prevention device on the window.

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South Florida Airbag Injury Claim Filed Amid Huge Recall

November 15, 2014

As the international recall on Japanese-made Takata airbags widens, a Miami-Dade woman has filed her own lawsuit, alleging defective airbags left her with lifelong scarring - and nearly killed her.
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It's true there is rarely such thing as a "normal" accident. After all, crashes are rarely anticipated, and the unexpected is what often makes the situation so bad. But we expect in these situations that airbags, upon impact, will protect us.

What regulators are now finding is that in an increasing number of cases, defective airbags in fact made the situation far worse.

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Auto Owners Ins. Co. v. Foster - Vehicle Ownership Key in Injury Action

November 5, 2014

The determination of who owns a vehicle and/or who has permission to drive it is a key in the wake of a crash.
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Answers to those questions will help your attorney figure out which insurance claims to pursue and what kind of coverage to which you may be entitled.

Often, the answers to these questions are relatively easy. Other times, they can be far more complex. An example of the latter was seen recently in the Indiana Court of Appeals case of Auto-Owners Insurance Company v. Foster.

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Curtis v. Lemna - Golf Injury Work-Related, Co-Worker Lawsuit Barred

October 30, 2014

A state supreme court decision in Arkansas underscores a fact that injured workers in many states come to find out: Injury lawsuits against co-workers are generally barred unless there is some evidence the action was intentional or outside the scope of employment.
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That means the primary question is whether the incident was work-related. For example, if a co-worker physically attacks you, he was almost certainly not acting within the scope of employment, and therefore the victim would have grounds to file a third-party injury lawsuit, in addition to seeking workers' compensation benefits. However, if he negligently crashes a motor vehicle while the two of you are on your way to a mid-day conference, this would likely be considered an action within the scope of employment. That means workers' compensation would probably be your sole remedy for compensation from your employer, though it's always best to consult first with an attorney to explore all options as a lawsuit against the other driver or even against your own insurance company may be warranted.

In the case of Curtis v. Lemna, the high court found a corporate executive who crashed a golf cart during a game played as part of a sales meeting was immune from liability for injuries to a fellow executive because he was acting within the scope of his employment.

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Bufkin v. Felipe's - Pedestrian Injury Claim Countered by Open Obvious Doctrine

October 20, 2014

A pedestrian was injured by a wrong-way delivery worker bicyclist on a one-way street. The pedestrian was crossing due to construction barriers blocking his path on the sidewalk.
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In a lawsuit he filed several months later, plaintiff alleged a large trash bin placed on street-level parking in front of the private building under construction obstructed his view and created an unsafe condition for anyone crossing the street. His lawsuit, Bufkin v. Felipe's Louisiana LLC, named as defendants the employer of the bicyclist, the construction company that had obstructed the sidewalk and the building owner.

The construction company sought summary judgment from the trial court, contending the trash bin wasn't unreasonably dangerous and the potential danger was open and obvious to any who encountered it. The trial court denied this request, but the Louisiana Supreme Court later reversed.

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Major v. City of Hartville - Constructive Notice in Premises Liability Lawsuit

October 13, 2014

In order to sue a business or municipality for failing to address a trip-and-fall hazard, a plaintiff must first show defendant knew or should have known about the danger. If there is proof the defendant knew, that's called "actual knowledge." When the evidence shows instead the defendant should have known about it, this is called "constructive knowledge."
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The latter can be established with circumstantial evidence, showing for example the condition was recurring or that it would have been discovered had defendant exercised reasonable care. If a plaintiff can't prove some form of knowledge of the danger by the defendant, he or she will have no case. It's a critical element of any premises liability lawsuit, and an experienced attorney can help determine whether there is a strong basis to prove it in your case.

It was central to the recent claim of Major v. City of Hartville, weighed by the South Carolina Supreme Court.

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Safeco Insurance Co. v. Beare - Bad Faith Claim Properly Abated, Not Dismissed

October 2, 2014

In most bad faith claims against auto insurers, the "bad faith" lawsuit is filed separately from the liability portion, lest it be deemed premature and dismissed.
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However, in the recent case of Safeco Insurance Co. v. Beare, plaintiff counsel amended the original third-party complaint alleging liability for a crash to include her own insurer as a defendant for failure to pay uninsured/underinsured motorist benefits.

Injury attorneys are more frequently employing this strategy, as it saves plaintiffs the trouble of having to refile the case. The recent decision in Beare, handed down by Florida's Fourth District Court of Appeal, allows that unripe bad faith claims can simply be abated (rather than dismissed) until the outcome of the liability action is determined.

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Gallon v. GEICO - Negligent Misrepresentation Claim to Proceed

September 24, 2014

An allegedly false statement by an auto insurance agent regarding stacked underinsured motorist (UM) coverage is at the center of a personal injury case before Florida's Second District Court of Appeal. carcrash4.jpg

Although other elements of the claim have been dismissed and affirmed on appeal, allowed to proceed is the question of whether this misrepresentation should mean the insured's injured son is entitled to double the UM coverage stated in the policy.

Our Fort Lauderdale car accident lawyers know issues of negligent misrepresentation are generally rare in these cases, so it will be interesting to see what ultimate conclusion is reached. If nothing else, the case of Gallon v. GEICO illustrates why it's not uncommon to need an attorney when dealing with auto insurance companies.

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