In an exciting win for Florida personal injury plaintiffs and their physicians, the state’s Supreme Court issued a recent landmark decision in the case of Worley v. Central Florida Young Men’s Christian Ass’n, Inc. The main issues in Worley were the permissibility of discovery as to who referred a plaintiff to her treating physicians and the financial relationship between those treating physicians and the plaintiff’s attorney. These hotly contested issues permeate many personal injury cases. In a very cogent opinion, the Supreme Court resolved these long-standing conflicts in favor of Florida personal injury plaintiffs by fully restoring the attorney-client privilege and making treating physician financial discovery off-limits.
If you have been injured in a fall accident due to a dangerous condition, taking photographs of the accident scene is a very useful step in your pursuit of justice. Due to the chaotic nature of slip and falls, the details surrounding the accident may not be immediately apparent to an injured party. Sometimes the incident happens so quickly and it is so unexpected that the person may not be certain as to what caused them to fall. A recent decision from a Florida appeals court reinforces that even if an injured party cannot testify with certainty as to what caused them to fall, pictures of the accident scene that show a dangerous condition will get the case to a jury that can produce a prevailing outcome.
In Christakis v. Tivoli Terrace, LLC, Florida’s Fourth District Court of Appeal addressed the issue of directing a verdict in a premises liability personal injury case wherein the injured Plaintiff was not certain as to what exactly caused her fall but had strong photographic evidence. In Christakis, the Plaintiff alleged that she fell and injured herself to a dangerous condition – the Defendant’s steps. The photographic evidence in this case showed that the Defendant’s steps were damaged and in disrepair; the Plaintiff also called an expert to testify that the steps were dangerous. Despite a jury verdict in favor of the Plaintiff, the trial court entered a judgment notwithstanding the verdict in favor of the Defendant due to the fact that the Plaintiff did not testify with certainty that the damaged step caused her to fall.
Florida’s Fourth District Court of Appeals recently handed down its decision in Nucci v. Target Corp., a personal injury case wherein discovery of the plaintiff’s Facebook posts was disputed. In Nucci, the plaintiff filed a lawsuit against Target claiming that she suffered permanent injuries due to a slip and fall accident. During the course of discovery, Target requested copies or screenshots of all photographs that the plaintiff posted on Facebook for a period of two years before the accident through the present day. The plaintiff objected to this discovery request, arguing that it was overbroad, burdensome and that it violated the Right of Privacy contained in Art. I, §23 of the Florida Constitution. When the trial court overrued the plaintiff’s objection and ordered her to turn over the Facebook discovery to the Defendant, she appealed.
In upholding the trial court’s order compelling the plaintiff to turn over the Facebook photographs, the Fourth DCA relied on three rationales. First, it held that the plaintiff lacked sufficient grounds to be entitled to certiorari review as overbreadth of discovery alone does not constitute a basis for certiorari. Specifically, the Court held that the plaintiff did not show that there has been a “violation of clearly established principle of law resulting in a miscarriage of justice” which would have entitled her to such review. Second, the Fourth DCA noted that under Fla. R. Civ. P. 1.280 the parties are entitled to a broad scope of discovery and that pictures which individuals choose to put on Facebook and share with family and friends are highly relevant to a fact-finder in a personal injury case. As the jury is charged with the task of examining a plaintiff’s life before and after an accident and awarding damages, the Court noted, “If a photograph is worth a thousand words, there is no better portrayal of what an individual’s life was like than those photographs the individual has chosen to share through social medial before the occurrence of an accident causing injury,” and went to call the photographs “powerfully relevant.” Finally, in examining the plaintiff’s claims that these requests violated the Florida Constitution’s Right of Privacy, the Court noted that the privacy right must be balanced against the need for discovery in a personal injury case. Per the Fourth DCA, when a person chooses to post a picture on Facebook and share it with family and friends there is no real privacy expectation. Even if there is a minimal privacy right, the Court held, it is outweighed by the defendant’s legitimate interest in conducting before-and-after discovery.
They say a picture is worth a thousand words. After a slip/trip and fall, a picture can worth hundreds of thousands of dollars. Having visual evidence of the dangerous condition that caused you to fall and injure yourself can go a long way in helping you prove your premises liability case.
To successfully prove a slip/fall premises liability case in Florida, a plaintiff must
prove that the, “business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it” (See Fla. Stat. §768.0755). Actual knowledge means the business owner/employees clearly knew of the spill or actually created the spill. The other means of proving a slip/fall case, constructive knowledge, requires a showing that the business owner/employees should have known of the spill if they used due diligence in inspecting and cleaning the premises.