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Articles Posted in Wrongful Death

When someone is injured in a car accident, they often have many thoughts racing through their head: could they have avoided the accident? Is there anything different they could have done? Who was at fault? Defendants will often try and use this thinking to convince a jury that the plaintiff was also at fault for the incident and, therefore, should be found negligent. This is called comparative fault. The comparative fault principle applies when the plaintiff’s actions contributed to their injuries. When it applies, comparative negligence reduces the defendant’s overall liability. However, many people are surprised to learn that this principle can also be applied in wrongful death cases.

According to a recent news report,  a 10-year-old girl was killed in a car crash on Interstate 75 in Sumter County. The driver of the vehicle reduced his speed for traffic – which had slowed down ahead of him – and the vehicle was struck in the rear. The force of the crash pushed the car into the center median, where it hit a guardrail and the car overturned. The driver suffered minor injuries, and the child died at the scene. The report indicates neither the child nor the driver was wearing a seat belt at the time of the accident.

In tragic accidents like the one above, potential defendants will likely claim comparative fault as a part of their defense, to lessen their own liability. In a wrongful death case, the jury is tasked with determining if the deceased was partially responsible for their own death; and, if so, which percentage of comparative fault is attributable to them. If the deceased is found to be partially responsible for the accident, their family’s recovery of damages will be reduced by the percentage the deceased is found liable. For instance, if the jury determines the deceased was 20% at fault for the accident that caused their death, their loved ones will only receive 80% of the awarded damages.

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.

After the death of a loved one, especially after an unexpected Florida car accident, there is a lot to deal with. A family must manage their grief, make funeral arrangements, as well as deal with their loved one’s medical bills. Because of this, the thought of filing a lawsuit is often the last thing on a family’s mind. However, a wrongful death claim may ease a grieving family’s financial burden and reduce many of the unavoidable stresses associated with a tragic loss.

Woman Killed on Florida Turnpike

Recently, a woman was killed, and several more were injured after a three-car crash on the Florida Turnpike. According to a local news report covering the accident, a van did not slow for traffic and hit the rear end of a car. After the vehicle was struck, it collided with a third vehicle. Unfortunately, an 84-year-old woman was killed while five others, including two young girls, suffered severe injuries.

Although the families of Florida car accident victims cannot have their loved ones back, Florida state law allows them to bring a claim against all responsible parties. The Florida Wrongful Death Act, contained in Florida Statutes section 768.16, enables the family of an accident victim to file civil charges against the responsible parties. To prove liability, the family must prove the death was caused by that person’s wrongful act, negligence, or breach of contract. Thus, a wrongful death lawsuit can only be brought if the deceased could have filed a lawsuit for the injuries he sustained, had he survived.

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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_668481628-300x200In a brand-new opinion, Ruiz v. Tenet Hialeah Healthsystem, Inc., et al., the Supreme Court of Florida reinforced that the concept of causation in medical malpractice is broad and should be left to a jury. The fact pattern in Ruiz involved a patient who was misdiagnosed with a tumor instead of multiple myeloma. Without ordering a biopsy to confirm the diagnosis, the treating neurosurgeon recommended a surgery to remove the “tumor”. During the surgery, the patient, Ms. Espinosa, went into cardiac arrest due to undiagnosed cardiac risk factors and passed away.

Ms. Espinosa’s estate brought a wrongful death medical malpractice case against a host of doctors and the hospital. One of the defendants was an anesthesiologist, Dr. Lorenzo, who had failed to recognize abnormal test results during the pre-operative clearance. The estate contended that had the defendant anesthesiologist pronounced these abnormalities, the surgery would have been cancelled and Ms. Espinosa would not have died.

The defendant doctor sought to have the case dismissed based on a failure to prove causation, e.g., that he was the legal cause of the patient’s death. Causation is a legal concept that bridges the gap between a defendant’s wrongdoing (negligence) and the damages sought by the plaintiff. In every personal injury and medical malpractice case, the plaintiff must prove that the defendant’s negligence was the legal and proximate cause of the injuries and damages that she is claiming.

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If you have lost a loved one due the negligence of another person, the last thing you need is to be bombarded with questions about the status of your relationship with the deceased. Last month, the Fifth District Court of Appeal in Florida clarified this issue in a written opinion in Domino’s Pizza v. Wiederhold, discussing when a plaintiff qualifies as a “surviving spouse” for a wrongful death lawsuit.

The court explored the tragic case of an engaged couple that married after a disastrously life-altering car accident. The plaintiff was a passenger in a vehicle with her then-fiancée, who was forced to swerve into a median when a vehicle owned by a Domino’s franchisee suddenly pulled out in front of them. The car overturned a few times before coming to final rest in a ditch. The accident immediately left the man a quadriplegic, while the woman was unharmed. A month after the accident the man sued Domino’s, the franchisee owner, and the driver of the franchisee’s vehicle. The couple subsequently moved forward with their commitment and married before the man died a year later due to accident-related injuries. After her husband passed away, the woman was substituted as the plaintiff and filed an amended complaint to include a claim for wrongful death damages.

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Summer break has ended here in Florida and schools are back in session. Consequently, there are an abundance of inexperienced teenaged drivers on the road. Many of these teenaged drivers are under 18 and driving their parents’ car. In 2015, there were 42,874 teenaged driver car crashes in Florida according to the Department of Highway Safety. At The Grife Law Firm, we have a wealth of experience representing people who have been seriously injured due to young, reckless drivers. Frequently, we are asked: Who can I hold responsible for the damages caused by a reckless teenaged driver?

Pursuant to Florida’s dangerous instrumentality doctrine, the owner of a vehicle is liable for damages caused by the negligence of permissive users. This doctrine was first recognized in the landmark 1920 case of Southern Cotton Oil Co. v. Anderson, wherein the Supreme Court of Florida held that, “[O]ne who authorizes and permits an instrumentality that is peculiarly dangerous in its operation to be used by another on the public highway, is liable in damages for injuries to third persons caused by the negligent operation of such instrumentality…” The rationale is that a motor vehicle is a potentially deadly piece of machinery that can cause serious harm, so the owner must bear some responsibility for damages caused by it. The hope is that the dangerous instrumentality doctrine will encourage vehicle owners to entrust only safe drivers to operate their cars. For purposes of our discussion, if a teenager drives in a reckless fashion and causes a car wreck, the owner of the at-fault vehicle will be held legally responsible for personal injury damages such as medical expenses, lost wages and pain and suffering.

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Florida has a very complex medical malpractice statutory scheme that an injured victim must follow in order to bring a case. Codified under chapter 766, the medical malpractice statutes require great skill to navigate. Amongst a host of other requirements, an injury victim must send relevant data to an expert medical professional in the same or similar specialty as the health care provider who you are going to bring suit against. That expert must then issue an affidavit verifying the negligence. The expert affidavit, along with several other documents, must then be served on the defendant doctor as part of a Notice of Intent to Initiate Medical Malpractice Litigation. All of the above must be accomplished within the two-year Statute of Limitations that Florida law affords victims of medical malpractice.

The recent case of Bay County Board of Commissioners v. Seeley provides us with a nice look at just how complex medical malpractice litigation can be. In Seeley, the plaintiff was injured when she fell off a stretcher while being wheeled by paramedics from her home to the awaiting ambulance. At first, she filed a lawsuit without complying with the medical malpractice pre-suit screening process because she did not believe her case was for medical negligence. That lawsuit was dismissed as the trial court determined her allegations were in fact medical malpractice in nature and thus she had to comply with the requirements of chapter 766.

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As the holidays approach, many of us will be attending parties at restaurants and having parties at our homes. At most of these parties, alcoholic beverages will be served. So, what are the legal ramifications for a restaurant or homeowner if someone leaves their property intoxicated and causes serious injuries to themselves or others? Florida’s Dram Shop law, codified as Fla. Stat. § 768.125, provides only very limited scenarios under which a business or homeowner can be held liable for the tortious acts of an intoxicated person such as a drunk driver.

Under Florida’s Dram Shop law, there are only two scenarios where a business or homeowner can be successfully sued for the actions of an intoxicated person. Those scenarios are: (1) the willful and unlawful selling or furnishing of alcoholic beverages to a person not of legal drinking age; and (2) knowingly serving a person alcohol who is “habitually addicted to the use of alcoholic beverages.” Under any other circumstances, according to §768.125, a person or business who provides alcoholic beverages to someone of legal drinking age “shall not thereby become liable for injury or damage” caused by or resulting from that intoxicated person.

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The increasing popularity of ride-sharing companies such as Uber and Lyft have given rise to a burgeoning area of law and personal injury claims. Many of us rely on these companies to get us home safely, but sometimes Uber and Lyft drivers can cause automotive crashes. Other times, another driver negligently causes a collision with an Uber or Lyft vehicle. Regardless of fault, there are certain insurance and legal issues that you should be aware of if you are involved in a ride-sharing automotive crash.

Uber and Lyft both market that they have secured high-limit insurance policies for the protection of their passengers. Currently, these two companies advertise that they have $1 million in liability and uninsured motorist coverage per incident (see our website on why you need Uninsured Motorist coverage for your personal automobile policy). This means if you are in a ride-sharing vehicle and that drivers causes a crash, you and all other injured parties have up to $1 million combined in liability coverage for your damages. Likewise, if an uninsured or underinsured driver crashes into your Uber or Lyft vehicle, you (and the other injured persons) will be covered up to $1 million combined from the ride-sharing company.

While $1 million might sound like a lot coverage, what happens if an Uber or Lyft driver causes a crash where there are a multitude of injured people whose aggregate claims are above $1 million? A negligent ride-sharing driver can severely injure or kill passengers in his or her vehicle and other drivers and their passengers. If this tragic event occurs, the injured parties will certainly want to make a claim directly against the ride-sharing company to collect more than the $1 million in insurance coverage. Under the agency law, the ride-sharing companies will likely argue that their drivers are independent contractors and not employees. That would mean under agency law that Uber or Lyft might not be held responsible for the damages.

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