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Articles Posted in Personal Injury Law

When a plaintiff files a lawsuit in Florida, often the dispute can be resolved before the case ever makes it to trial. Although there are various points where the issue may be resolved before going to trial, a motion for summary judgment is one of the most common ways to get a court to enter a judgment in your favor, avoiding the need to battle it out with the other party through an expensive and stressful trial.

In a recent Supreme Court of Florida decision, the court examined the role of video evidence in light of a summary judgment motion. Following a fatal rear-end car accident, the estate of the deceased sued the other party. The trial court granted summary judgment for the defendants after video evidence from the vehicle’s forward-facing dashboard camera contradicted the estate of the deceased’s version of events. On appeal, the appellate court reversed the trial court’s summary judgment ruling, claiming that the lower court had improperly weighed the video evidence in light of all of the facts of the case.

On appeal before the Florida Supreme Court, the court affirmed the appellate court’s decision to reverse summary judgment. Because the appellate court understood that summary judgment should not be granted in instances where evidence or the record raises even the slightest doubt that a dispute could be had over issues in the case, the Florida Supreme Court felt the appellate court considered the issue properly.

In Florida, like many other states, the legal doctrine known as res ipsa loquitur exists as a claim that can be brought against defendants in civil tort related cases. Typically, the claim is advanced when a party argues that the court can infer negligence from the accident or injury that occurred even in the absence of direct evidence. In other words, res ipsa loquitur is typically brought when the nature of how an accident or injury came about is so obviously negligent that the court does not require additional direct evidence on how a defendant behaved to assign liability.

In a recent Florida district court of appeal opinion, the court considered whether the doctrine of res ipsa loquitur applied to a personal injury case. An attorney brought a premises liability case on behalf of his client, who was being held at a local county jail when she was injured by an interior gate that closed on her unexpectedly. At trial, the defendant argued that the officer who controlled the gate and the jail did not act negligently, but instead a sensor was tripped, or there was a malfunction, which caused the accident. However, the attorney presented testimony from jail staff explaining that the jail gates operated manually and were controlled by an officer, but did not present evidence explaining whether a malfunction could cause the gate to close unexpectedly. The jury ruled in favor of the plaintiff with a res ipsa loquitur instruction, and the defendant appealed.

On appeal, the court sided with the defendant and reversed and remanded the case for further consideration. Because the plaintiff failed to prove that negligence by the defendant was the probable cause of her injuries, the court could not apply res ipsa loquitur to the present case. Although the plaintiff offered some evidence on how the gate was intended to operate, the lack of expert testimony on how the gate actually worked at the time of the incident or whether a malfunction could have caused an accident absent negligence meant that the plaintiff failed to meet the burden of proof necessary for the court to apply res ipsa loquitur.

When it comes to civil claims, every state has slightly different laws addressing these lawsuits. In many personal injury claims, when the at-fault party does something negligently and causes injury to another party, the injured party can often seek damages through a Florida personal injury lawsuit.

Florida, like several other states, uses comparative negligence laws to determine liability. Under general comparative negligence laws, both parties in a lawsuit could potentially be at fault if they each contributed to the injuries or damages that are in dispute. Under Florida law, courts apply pure comparative negligence laws. These laws are a bit more flexible and can allow even at-fault parties to claim some amount of compensation.

To illustrate Florida’s pure comparative negligence standard, consider this example: a man is speeding and crashes into another car on the road, and the other driver suffers significant injuries. The driver who was hit, however, was distracted while driving because he was checking his phone. If the injured party decides to bring a personal injury claim to recover damages from his injuries following the collision, the court may argue that the injured party was also partially responsible for their injuries. This may affect how much the plaintiff is able to collect from the defendant since the accident may not have occurred if he was not on his phone. If a plaintiff is found to be partially at fault for his injuries in the accident, his damages will be reduced. If the plaintiff shared responsibility for causing the collision, this would diminish any economic and non-economic damages proportionate to their level of fault. The plaintiff, however, will not be completely barred from recovering compensation.

Many people may feel helpless if they were injured and the government is partially responsible. However, while there are statutes limiting the lawsuits that can be brought against the government, plaintiffs can sue the government if they caused the accident. That said, in Florida, there is a government liability cap. This means a plaintiff cannot typically receive more than $200,000 in damages when the government is a defendant. However, when more than one person has been injured, is the damages cap $200,000 for each defendant or the entire accident? In a recent Florida Supreme Court case, the court was tasked with answering this question. Ultimately, the court concluded that the government liability cap was for the entire event, not an individual damages cap for each victim.

Before a mass shooting, the Florida Department of Children and Families (DCF) was contacted to investigate a husband’s abusive behavior. DCF ultimately concluded that the wife and children were not at significant risk of harm and closed the case file. Several months later, the husband fatally shot his estranged wife and her four children and wounding a fifth child. The estate representative for one of the deceased children filed a lawsuit against DCF, alleging they were liable for the child’s wrongful death. Additionally, the father of the injured child, and the personal representative of the estates for the other three deceased children, filed a separate lawsuit against DCF.

The plaintiffs separately argued that DCF failed to protect the children from an unreasonable risk of harm by not following up and truly investigating the domestic violence matter. DCF argued because of Florida’s limited waiver of sovereign immunity, limiting the damages when the defendant is the government, the most the plaintiffs could recover was $200,000. Florida Statute § 768.28(5) states that damages paid by the state or its agencies for all claims “arising out of the same incident or occurrence” may not exceed $200,000. The plaintiffs argued that the shooting of each individual victim should be viewed as a separate “incident or occurrence,” meaning $200,000 in damages could be given for each deceased child. However, the court determined that the “same incident or occurrence” was referring to the event as a whole, and not the individual action against each individual victim. Therefore, the claims stemming from the shooting arose from the “same incident or occurrence” and is subject to the $200,000 cap for damages paid by the state government.

While car insurance is required for every Florida driver, in reality, a frighteningly large number of Florida drivers are uninsured. This can cause significant problems when they get into accidents. In fact, other drivers’ lack of insurance is one of the reasons that all Florida drivers are encouraged to purchase Uninsured/Underinsured Motorist Insurance (UIM).

If a Florida driver is seriously injured in an accident caused by an uninsured or underinsured driver, they may be unable to recover fully for their injuries and the resulting medical bills, forcing them to pay out of pocket for an accident they did not cause. UIM protects drivers by providing coverage for medical bills, lost wages, and pain and suffering, helping to make sure that a Florida car accident victim does not go bankrupt solely because they were hit by an uninsured motorist.

Despite its importance, UIM benefits can sometimes be difficult to actually obtain, since insurance companies may attempt to find ways to avoid paying the amount that they owe their clients. For example, take a recent Florida case where an injured driver had to take her insurance company, USAA, to court to try and recover UIM damages she believed she was owed. The plaintiff had suffered injuries to her left knee while attending the U.S. Naval Academy, and had even needed knee surgery in the past. She presented evidence to the jury, however, that her left knee was further injured in the car accident she was involved in, which was caused by an uninsured motorist. USAA attempted to escape liability by arguing that the plaintiff’s knee was already injured before the car accident and that she was not entitled to compensation from her insurance.

shutterstock_719930443-300x200Texting and driving – an epidemic responsible for 1 in 4 car accidents – will officially be classified as a primary traffic offense in Florida starting on July 1, 2019. Prior to the passage of this new law, texting and driving was a secondary offense, meaning you could not be pulled over for it. Now, law enforcement has the power to stop and ticket solely for a texting and driving violation. This new law bans as a primary offense all forms of typing on a wireless device while driving, which includes texting, e-mailing and instant messaging. Using your cell phone to read text messages and e-mails while driving is also prohibited.

Officially codified as an amendment to Florida Statute § 316.305, the new law reads that, “A person may not operate a motor vehicle while manually typing or entering multiple letters, numbers, symbols, or other characters into a wireless communications device or while sending or reading data on such a device…” Florida now joins 44 other states in making texting and driving a primary offense. The law passed through Congress by an overwhelming majority – 108-7 in the House of Representatives and 33-5 in the Senate – before being signed into law by Governor DeSantis.

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shutterstock_604492649-1-300x200With the dawn of the social media age came a burgeoning new field of law. Social media discovery has spawned a rash of appellate decisions covering everything from the discoverability of Facebook posts to the legal significance of emojis. But what happens when a Facebook post could be evidence of a crime?  Does that post get Fifth Amendment protection against self-incrimination?

The above question was posed to Florida’s Fourth District of Appeal in Wright v. Morsaw, a wrongful death civil case. In Wright, it was alleged that the Defendant was intoxicated when he left a Delray Beach bar. The Defendant was accused of a hit-and-run crash that killed a pedestrian. After the fatal crash, the Defendant allegedly fled to a friend’s home where he posted about the incident on social media.

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shutterstock_227581717-300x200In the case of  Walerowicz v. Armand-Hosang, the Fourth District Court of Appeal clarified its perspective on two points: 1) what is considered sufficient evidence to prove past medical expenses and 2) how to deal with admission of expert testimony that does not conform to the court’s trial order. In this case, the plaintiff, Mandy Armand-Hosang, sued for permanent bodily injuries she sustained in a car accident. As in most every auto accident case in Florida, Ms. Armand-Hosang, as the plaintiff, had to prove the causation and permanency of the her injuries and reasonableness and necessity of her medical bills. The Fourth District Court of Appeal sided with the plaintiff on both issues, holding that the trial court did not abuse its discretion by allowing the plaintiff’s surgeon to testify regarding the causation and permanency of the plaintiff’s injuries, and the plaintiff had met the evidentiary burden to prove the reasonableness and necessity of her past medical expenses.

In many states, all that is required to establish reasonableness and necessity of past medical bills is merely entering the medical bills into evidence. Florida, on the other hand, requires a little more effort—but to what extent? In Walerowicz, to prove reasonableness and necessity, the plaintiff’s attorney relied on the plaintiff’s testimony about her treatment for her accident-related injuries, the treating surgeon’s testimony, and also offered the medical bills into evidence. The defendant argued that the testimony was insufficient to establish reasonableness and necessity because the plaintiff did not associate each specific bill to the injuries sustained in the accident.

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At some point in life, every person surely has received the age-old advice to read a contract before signing it. However, what if you are awoken from a comatose state only to realize that a contingency fee contract with a law firm was executed on your behalf?

On April 4th, 2018, the Fourth District Court of Appeal decided the case of William O’Malley v. The Freeman Law Firm, which serves as a cautionary tale to lawyers who work on contingency fee agreements. In this case, the appellant, William O’Malley, was involved in a horrendous car wreck that left him in a coma for months. During this period, his mother sought representation on his behalf and signed a personal injury contingency fee contract as the personal representative of the Estate of William O’ Malley. Problem: the mother was never actually appointed as personal representative! Moreover, Mr. O’Malley had not executed a power of attorney in favor of his mother, nor had he been declared legally incompetent by a court, which could have led to an appointment of a legal guardian.

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In my experience as a trial lawyer, it is often times difficult for the parties of a lawsuit to understand the restrictive nature of the rules of evidence. There are narrow guidelines by which attorneys must conduct themselves when arguing to a jury. If a lawyer steps out-of-bounds during trial, his client’s favorable verdict might be overturned by an appellate court.

Such was the case in TT of Indian River v. Fortson, a recent appellate decision issued by Florida’s Fifth District Court of Appeal. In TT of Indian River, the plaintiff in a personal injury automobile accident case received a favorable jury verdict. However, due to some remarks made by her trial attorney, that verdict was overturned.

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