Negligence Category Archives — Page 7 of 9 — South Florida Injury Attorneys Blog Published by South Florida Injury Lawyers

November 26, 2014

Third District Court of Appeal Addresses Liability for Subcontractor Employee Injuries

Although workers’ compensation is supposed to be simple in practice, a common issue that arises from workplace accidents at construction sites is clarifying liability when there is a subcontractor relationship or multiple subcontractor relationships. The issues regarding workers compensation liability and civil suit immunity following the injury of a subcontractor worker are at the center of the Third District Court of Appeals’ recent decision in VMS, Inc. v. Alfonso (PDF download).

Alfonso started with a long chain of subcontractor relationships. At the beginning of the chain is the Florida Department of Transportation, which contracted with VMS to maintain and manage certain roadways in Palm Beach, Broward, and Miami-Dade Counties. As part of the contract, VMS was required to maintain workers’ compensation insurance, which it did. Next, VMS subcontracted some of the roadwork to ABC, which was also required pursuant to its subcontract with VMS to maintain workers’ compensation insurance, which it did. Thereafter, ABC hired an individual to handle some of the work that ABC had obligated itself to do. To accomplish this task, the individual hired several day laborers, including the plaintiff in this suit, but he never acquired workers’ compensation insurance. While performing roadwork covered by this labyrinth of subcontracts, the plaintiff was severely burned by hot tar that spilled on him. It is disputed whether VMS had knowledge of the accident, but the individual who hired the day laborer and ABC did have knowledge, and neither ABC nor VMS reported the incident to their respective workers’ compensation insurers.

November 19, 2014

Second District Court of Appeal Reverses in Medical Negligence Suit

by Frankl Kominsky Injury Lawyers

A key issue that arises in negligence litigation generally and medical negligence cases in particular is properly defining and asserting the applicable duty of care. Since the existence of a legally cognizable duty of care is essential for every claim of negligence, successfully proving that a defendant’s conduct was negligent depends on properly fitting that conduct within the borders of a recognized duty of care. This requirement is at the heart of the Second District Court of Appeal’s recent decision in Granicz v. Chirillo, in which the court addressed whether a physician could be held liable for medical negligence following the suicide of a patient.

As noted above, the Granicz litigation arose from a patient’s suicide on October 9, 2008. Prior to her suicide, the patient had been receiving treatment for depression from her primary care physician, the defendant in this case. Prior to 2005, the patient had been taking Prozac, but the physician switched her medication to Effexor at the time he began treating the patient in 2005. At some time in June or July of 2008, the patient stopped taking her medication because of side effects. On October 8, 2008, the patient called the office of the physician and spoke with a medical assistant. The patient told the medical assistant that she hadn’t been feeling right since June or July and had ceased taking her Effexor. In addition, the patient informed the medical assistant that she was under mental strain, been prone to crying, suffering from gastrointestinal problems, and having sleeping issues that resulted in increased reliance on sleeping medication. The medical assistant recorded this information in a note for the physician. The physician reviewed the note shortly thereafter and decided to change her medication to Lexapro and refer her to a gastroenterologist. Afterward, an employee from the physician’s office called the patient and told her she could pick up samples of Lexapro as well as a prescription for the drug from the office, which the patient did later that day. However, an appointment with the physician was never scheduled, and the physician never spoke with the patient directly. On the following day, the patient’s husband found the patient hanging in the garage of their home.

November 12, 2014

Marcum v. Hayward: Liability for Unconscious Drivers in Florida

by Frankl Kominsky Injury Lawyers

Although a driver having an unanticipated seizure and slamming her vehicle into the vehicle of someone else sounds more like a TV drama than the facts of an actual case, the facts underlying the Second District Court of Appeal’s recent decision in Marcum v. Hayward show that situations that sound imaginary can indeed happen in reality.

The Marcum litigation was set into motion by a motor vehicle accident in Central Florida. One of the defendants in the case was driving a vehicle owned by her employer, Artistic Pools of Florida, Inc., and testified that while she was driving she felt she had temporarily lost consciousness, regained it, and then lost it again before she saw paramedics. A fellow employee riding in the car similarly testified that the driver stated she felt she had lost consciousness and that she didn’t feel well. Apparently, she had asked her passenger where they were headed and soon thereafter lost consciousness. The coworker also testified that after the driver lost consciousness he tried to use his hand to engage the brake but was prevented by the seat belt from doing so. After the driver lost consciousness, the vehicle collided with the vehicle of the victim, who said that she found the defendant suffering from a seizure when she walked to her car after the crash. Following the accident, the victim brought suit against the driver, Artistic Pools, and the driver’s auto liability insurer, asserting claims of negligence. The driver moved for a directed verdict, arguing that she could not be found negligent because she had suffered a sudden, unforeseeable seizure, and the time between the onset of this seizure and the crash was insufficient for preventative measures to be taken. The trial court denied the motion for a directed verdict.

October 29, 2014

Fourth District Court of Appeal Affirms Dismissal of Broward Medical Malpractice Case

by Frankl Kominsky Injury Lawyers

Given that the Florida law imposes specific evidentiary standards, pre-suit filing requirements, and other obligations on medical negligence cases, it follows that properly distinguishing medical negligence from standard negligence is important for successfully asserting and proving claims that ambiguously skirt the line between standard negligence and medical negligence. This issue is at the center of a recent decision from the Fourth District Court of Appeal, Buck v. Columbia Hospital Corporation Of South Broward. In Buck, the court needed to determine whether it was proper for a trial court to dismiss a wrongful death case for failing to comply with the medical negligence pre-suit requirements of Chapter 766, Florida Statutes.

The act of negligence resulting in the death at issue in this case occurred in May 2012. At that time, the decedent was brought to Westside Regional Medical Center in Broward County and admitted for complications related to chronic obstructive pulmonary disease. Two days following her admission, the decedent was scheduled to have x-rays performed and was transported to the radiology floor. Prior to the decedent’s x-rays being taken, transport techs at the medical facility lifted the decedent from the transport gurney in order to place her on the x-ray table. In the course of this movement, the decedent was dropped on the x-ray table, which caused the decedent to sustain a fracture of her lumbar spine. Various factors, including the decedent’s age and medical condition, limited the treatment options for the broken back. The decedent’s condition deteriorated thereafter, and the plaintiff alleges that the broken back ultimately caused the death of the decedent.

October 22, 2014

Fourth District Court of Appeal Holds That Prior Jury Determination is Binding in Uninsured Motorist Case

by Frankl Kominsky Injury Lawyers

Uninsured or underinsured motorists are not an uncommon problem in Florida. A recent study conducted by the Insurance Research Council showed that in 2012 Florida ranked second in the nation in the number of uninsured drivers, with approximately 3.2 million of the state’s drivers being uninsured at the time. In fact, Florida had only about a million fewer uninsured drivers than California, even though The Golden State boasts a population nearly twice the size of The Sunshine State. Beyond placing their personal pocketbooks in peril, uninsured and underinsured motorists often create legal hassles for those with whom they happen to collide. The sort of frustrations commonly occasioned by accidents with uninsured motorists are at the center of a recent case from the Fourth District Court of Appeal, Geico General Insurance Company v. Paton. Paton involved a dispute between an injured passenger and an insurance company that refused to pay the full policy limit of uninsured motorist benefits following an accident involving an underinsured motorist.

The plaintiff in Paton was injured in a car accident resulting from the negligence of an underinsured driver on January 1, 2008. The driver’s insurance provider, Geico, paid the injured plaintiff $10,000, which was his policy limit. The injured plaintiff’s mother, however, maintained uninsured/underinsured motorist coverage with Geico with a policy limit of $100,000. The injured plaintiff’s attorney made a formal demand to Geico to pay the full policy limit. Geico objected and offered $1,000 in exchange. Subsequent negotiations followed, but Geico never offered more than $5,000 during the course of this back and forth. Eventually, the dispute went to trial, and a jury returned a verdict in favor of the plaintiff and fixed damages, including present and future pain and suffering, at $469,247. Geico did not move for a new trial, and judgment was entered in the plaintiff’s favor but limited to the $100,000 policy limit. The plaintiff then, with the leave of the court, amended her complaint to include a claim for bad faith under § 624.155 of the Florida Statutes. Before a second trial with respect to the added bad faith claim, the plaintiff moved in limine to exclude evidence of damages from the second trial and fix those damages at the amount that was not recovered at the first trial, $369,247. Geico then moved to exclude from evidence in the bad faith trial the damages awarded in the prior underinsured motorist trial and force the plaintiff to prove bad faith damages anew. The trial court granted the plaintiff’s motion and denied Geico. After a second trial, the jury returned a verdict for the plaintiff, and the court awarded damages of $369,247. Geico then appealed.

October 15, 2014

Supreme Court of Florida Resolves Conflict in Broward Medical Malpractice Case

by Frankl Kominsky Injury Lawyers

Medical malpractice litigation is not uncommon in Florida. As a result, many state courts have had the occasion to weigh in on the proper standard for medical negligence liability. Although there is harmony among state courts regarding most issues, division does occasionally arise and consequently require resolution by Florida’s highest court. For instance, in one recent case, Saunders v. Dickens, the Supreme Court of Florida resolved a conflict among various state appellate courts regarding the burden of proof for negligence in a medical malpractice action.

The alleged acts of medical negligence that gave rise to Saunders started on July 7, 2003. On that day, the plaintiff visited a neurologist and described symptoms including cramping and feelings of numbness in his extremities, back pain, leg pain, and unsteadiness. After this visit, the plaintiff was admitted to a hospital, where he underwent several MRIs, which did not include an MRI of the cervical spine area. The neurologist then consulted with a neurosurgeon after receiving the results of the MRIs. The neurosurgeon recommended a lumbar decompression procedure, and the plaintiff underwent surgery. However, the plaintiff’s condition failed to improve following the surgery. At this point, the plaintiff returned to the neurosurgeon, who conducted further exams and determined that the plaintiff was experiencing cervical decompression, which would require additional surgery. The surgery was never scheduled, although the plaintiff had been cleared for surgery on November 6.

However, the plaintiff experienced a deep vein thrombosis in December, which prevented the plaintiff from scheduling or undergoing surgery thereafter. The plaintiff then consulted with a different physician, who recommended a second lumbar decompression surgery as well as a cervical decompression surgery. The plaintiff underwent the lumbar surgery but never underwent the cervical surgery. The plaintiff’s condition continued to deteriorate and ultimately resulted in quadriplegia. During the pendency of this appeal, the plaintiff died.

October 8, 2014

Supreme Court of Florida Answers Certified Question Regarding Dangerous Instrumentality Doctrine

by Frankl Kominsky Injury Lawyers

The dangerous instrumentality doctrine is a long-established principle of tort law. Under this doctrine, a person with a property interest in a vehicle is vicariously and strictly liable for the injuries that result from negligent operation of that vehicle by a person to whom he or she granted custody of it. Although the principle is well established, questions regarding its application still arise. For example, in one recent case, Christensen v. Bowen, the Supreme Court addressed a question that arose from it, which had been certified to it by the Fifth District Court of Appeal.

Bowen arose from a motor vehicle accident that occurred in early 2005 when one of the defendants, the former wife of the other defendant, negligently struck and killed another person while operating the vehicle. At the time of the accident, title to the vehicle remained in the name of both the defendants, although the vehicle had been purchased while the defendants were in the process of getting a divorce. At the time of purchase, the then-married defendants signed an application for certificate of title to be issued to them as owner and co-owner. The then-husband never received copy of the certificate of title, since it was mailed to his wife’s address. In addition, the then-husband never had keys or access to the vehicle. Following the accident, the estate of the deceased brought suit against the driver and her former husband. The former wife moved for a directed verdict on the ground that her former husband was an “owner,” but the trial court denied the motion. A jury eventually found that the former husband was not an owner for purposes of applying the dangerous instrumentality doctrine, but his former wife appealed, arguing that the trial court erred by not granting her motion for a directed verdict on ownership. The Fifth District Court of Appeal agreed but certified the question to the Supreme Court of Florida as a question of great public importance.

September 24, 2014

Fourth District Court of Appeal Declines to Enforce Arbitration Provision in Elder Abuse Case

by Frankl Kominsky Injury Lawyers

Florida has long served as a destination for America’s elderly population and, as a result, has also become home to a considerable number of retirement homes and assisted living facilities. Regrettably, despite the best efforts of the Florida’s Department of Elder Affairs, the care residents at these facilities receive remains an issue. Even when cases of elder abuse are properly identified, many litigants encounter a variety of problems when they bring legal action to redress their grievances. Among these issues is the pervasive use of arbitration clauses in retirement home and assisted living facility contracts. However, notwithstanding the ubiquity of arbitration provisions, the Fourth District Court of Appeal again took a firm stance against their enforceability in its recent decision in Lopez v. Andie’s, Inc..

Lopez arose from allegations involving resident care at Willow Manor Retirement Home, an assisted-care living facility in Dania Beach, Florida. Following an incident in 2011, which resulted in a severe fracture to a resident’s arm, the resident brought suit against the facility. However, shortly after the case was filed, the defendant moved to compel arbitration, arguing that the arbitration provision in the agreement executed between the resident and Willow Manor at the time of the resident’s admission required that any controversy or dispute between the parties be determined through a binding arbitration proceeding held in accordance with the American Health Lawyers Association (“AHLA”) alternative dispute resolution rules. After the trial court granted the defendant’s motion to compel arbitration, the plaintiff brought an appeal, arguing that the arbitration procedures were contrary to public policy and thus unenforceable.

September 10, 2014

Federal Court Denies Motion to Dismiss in Premises Liability Case at Sawgrass Mills Mall

by Frankl Kominsky Injury Lawyers

Although it is uncommon for premises liability cases to find their way to federal court, the specifics of a case occasionally make resolution in the federal setting possible. When such federal adjudication is accessible, litigants will often strategically use the availability of the federal forum – and, more importantly, the differences in its rules – to their advantage. A recent case from the Southern District of Florida, Fink v. Burlington Coat Factory of Florida, LLC, provides an example of this strategic use of forum selection.

Fink arose from a slip and fall accident at the Burlington Coat Factory in Sawgrass Mills Mall. As a result of the fall, the plaintiff suffered a variety of severe injuries, and she decided to bring a premises liability suit against Burlington Coat Factory and several other defendants. In her complaint, the plaintiff made somewhat conclusory allegations of negligence. Specifically, the plaintiff stated that the defendants negligently maintained the floor in a bumpy and unsmooth condition, which was characterized by unsafe protrusions. However, the plaintiff did not state any particular condition or characteristic that existed and directly caused her fall. The plaintiff originally brought her suit in state court in Broward County, but the defendants, recognizing that the action could have been brought in federal court, had the case removed to the Southern District of Florida pursuant to 28 U.S.C. § 1332(a). After removing the case to federal court, the defendants brought a motion to dismiss, arguing, in part, that the plaintiff’s pleadings were insufficient to maintain her cause of action based on the federal pleading standards delineated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009).

For many standard causes of action, both state and federal procedural rules provide form documents outlining the essential facts and allegations one can plead to bring a case. In the instant case, the plaintiff’s complaint was substantially similar to the form pleadings for “fall-down negligence” claims provided by the Florida Rules of Civil Procedure. See Fla. R. Civ. P. Form 1.951. Although the action had been brought in state court, where such pleading would have been sufficient, the defendants nonetheless argued that Florida form pleading was insufficient under federal pleading standards. One can see the irony of this argument, considering it was the defendants who brought the case to federal court. However, despite the defendants’ calculated use of the federal removal statute, the court determined that, irrespective of the heightened pleading standard in federal court, the plaintiff’s factual allegations were sufficient to overcome the motion to dismiss.

September 3, 2014

Third District Court of Appeal Reverses in Scuba Diving Wrongful Death Case

by Frankl Kominsky Injury Lawyers

With a seemingly endless coastline, Florida is a haven for water-based recreational activities. As the Third District Court of Appeal noted at the conclusion of its recent decision in Diodato v. Islamorada Asset Management, Inc., many Floridians and tourists in the state commonly enjoy recreational activities such as jet-skiing, para-sailing, and scuba diving. Although the vast majority of those who engage in these activities do so without incurring any injury, they remain hazardous activities, and participation does come with some degree of risk. In light of the attendant dangers posed by these and other forms of recreation, virtually every business in this field requires customers to sign contracts containing provisions commonly known as exculpatory clauses, which state that the customer assumes the risk associated with the activity. This practice is at the center of the controversy in Diodato, which involved the unfortunate drowning of an Arizonan woman during a deep-water wreck scuba excursion off the Florida Keys.

The aforementioned drowning occurred on April 15, 2010, although this was not the decedent’s first time diving. In fact, she had obtained PADI certification in Arizona and had previously gone on several other dives with the principal defendant in this lawsuit, Key Dives, an Islamorada-based recreational scuba diving company. The fatal dive, however, was an advanced deep-water wreck dive, which was unlike the open water reef dives she had previously done with Key Dives instructors. It is common practice at Key Dives for customers to sign a liability release prior to each dive. However, on this day of this dive, the decedent arrived late to the dock and was not required to sign a waiver. After submerging about 10 feet, the decedent signaled to one of the instructors that she would like to surface. The instructor followed her up but did not help her back on board the boat. While trying to board the boat, the decedent lost hold of the boat’s granny line and drifted away. In response, the captain signaled an alarm, and after a brief search, the decedent was found floating, but she had drowned.

Following the incident, the estate of the decedent brought a wrongful death action against Key Dives and several of its employees and agents. Although the decedent had not signed a liability waiver on the day of that particular dive, the defendants argued that other liability waivers signed by the decedent in connection with other Key Dives diving events covered the incident at hand and shielded the company from liability. Specifically, in August 2009, the decedent signed a liability waiver before a series of six open-water reef dives and initialed a provision on the contract that stated that the release was valid for one year from the date it was signed. In addition, the day before the deep-water dive, the defendant went on an open-water reef dive that was being used as preparation for the upcoming advanced dive and again signed a liability release. This release was identical to the one signed in August of the year before, but the decedent on this occasion did not initial the one-year provision. Although Key Dives intended for the decedent to sign a more thorough release form on the day of the fatal dive that covered particularities of the deep-water excursion, the decedent did not sign this release, since she, as mentioned above, arrived late, and the crew did not wish to delay other diving customers. Following discovery, the trial court granted summary judgment in favor of the defendants and held that the August 2009 and April 2010 releases covered the fatal diving event at issue, and, accordingly, the decedent had released Key Dives and its employees from liability.