South Florida Injury Attorneys Blog

July 15, 2020

Florida Nursing Home Coronavirus Cases Hit New Records

The Centers for Disease Control (CDC) reports that Florida is experiencing record-breaking new daily coronavirus cases. Despite reluctance from residents and some state officials, many local government entities are imposing restrictions on social gatherings and closing down beaches during high-traffic weekends, such as the Fourth of July. However, many of the new cases are tied to Florida nursing homes and long-term care facilities.

A recent news report indicates that most outbreak clusters occur in nursing homes, prisons, and food processing plants. This is likely the result of the inability to adequately social distance at these facilities. Additionally, although many clusters occur at prisons and food plants, the deadliest cases have been in nursing homes, where the residents are particularly vulnerable to COVID-19.

Florida nursing homes should prevent, quickly diagnose, and treat coronavirus outbreaks at their facilities. The CDC advises these entities to keep COVID-19 out of their facilities by limiting visitors, educating healthcare personnel, and ensuring adherence to infection prevention and control practices. Additionally, Florida nursing homes and long-term care facilities should identify infections as soon as possible by conducting regular screens of their staff and residents. Consistently engaging in these prevention, education, and treatment practices will help slow the rate of outbreaks.

May 13, 2020

Court Reverses Summary Judgment Motion in Florida Slip and Fall Case

by Frankl Kominsky Injury Lawyers

In a recent appellate case, a plaintiff appealed a trial court’s final judgment order entered against him in favor of defendants in the Florida slip and fall claim. According to the court’s opinion, the plaintiff filed a negligence lawsuit against a plasma-donation center (the Center) after slipping and falling in the defendant’s bathroom. Evidently, while the plaintiff was at the Center, he went to use the bathroom, as he pushed the door open and took a few steps onto the floor, he fell. He told the receptionist about his fall and asked her to call emergency responders. The defendants created an incident report which described the man’s fall and indicated that the Center’s supervisor checked the bathroom floor and did not see any liquid.

During a deposition, the man testified that he does not remember seeing a wet floor until after he fell but that he remembers slipping and falling forward, as if someone pushed him. When he was on the floor, he saw something that resembled a cup of water and a couple of muddy footprints. The medical supervisor testified that he did not remember how much time elapsed between the incident and inspection, and the Center did not have a schedule for inspecting the bathrooms.

The defendants moved for summary judgment, arguing that the plaintiff’s contention of seeing wet footprints was not enough to overcome the motion. In response, the plaintiff argued that his testimony regarding the appearance of the substance in combination with the defendant’s Centers testimony concerning the lack of inspections created a genuine issue of material fact.

April 15, 2020

Appellate Court Finds in Favor of Plaintiff in Lawsuit Against Florida County

by Frankl Kominsky Injury Lawyers

Recently, a Florida appeals court issued an opinion in a lawsuit brought by an injured cyclist against Pinellas County. Historically, sovereign immunity protects governmental entities and officials from lawsuits stemming from the performance of their official government duties. However, in the interest of fairness, the federal government (as well as most states) provides waivers to this immunity. Florida permits individuals to sue the government in certain situations, but does not allow plaintiffs to recover punitive damages or compensation over $200,000.

In the case above, the plaintiff filed a lawsuit against the county for injuries he suffered when he lost control of his bike and fell into a ditch in an intersection maintained by the county. The plaintiff testified that he was heading west, approaching the intersection when he noticed a car stopped in the northbound lane. He wanted to proceed south but was not sure what the driver was going to do, so he remained on the shoulder of the road. However, the car struck him, and he blacked out.

The plaintiff claimed that the county was responsible for his damages because they negligently maintained the roadway and failed to warn motorists, pedestrians, and bikers of the road’s dangerous condition. The plaintiff contended that the intersection’s shoulder lacked clear zones and slopes for bikers. The lower court let the case against the government proceed, but in response, the county claimed that they were not responsible because the plaintiff could not prove that they were the cause of the accident or his injuries. The court granted the county’s motion for summary judgment, but the plaintiff appealed, arguing that there were genuine issues of material fact that remain unresolved.

March 25, 2020

Florida Court Allows Personal Injury Damages in Spilled Battery Acid Case

by Frankl Kominsky Injury Lawyers

Recently, an appellate court issued an opinion addressing whether Florida’s 1970 Pollutant Discharge Prevention and Control Act allows a plaintiff’s cause of action for personal injuries. The plaintiff worked for a Florida tow truck company and suffered injuries when he arrived at the scene of an accident between a truck transporting batteries and another vehicle. The plaintiff alleged that he suffered serious injuries after coming into contact with battery acid leaking from the truck. He filed a lawsuit against the trucking company claiming that they were strictly liable for his injuries under the 1970 and 1983 pollution acts. The jury found in favor of the plaintiff and awarded him over $5million in damages; however, the district court reversed reasoning that the 1970 statute precluded his claim to personal injury damages.

Pollutants often pose significant threats of danger to Florida residents and the environment. In response to growing concerns regarding exposure to these pollutants, the legislature enacted Florida’s 1970 Pollutant Discharge Prevention and Control Act (1970 Act) and the 1983 Water Quality Assurance Act (1983 Act), which regulates the discharge and removal of certain pollutants. Legislature designed the acts to ensure that these entities are diligent in their handling of these potentially dangerous materials.

The 1970 act provides that the discharge of pollutants upon lands adjoining the coast, tidal flats, and coastal water is prohibited. The 1983 law expanded upon the 1970 act and provided injury victims with a cause of action for harms resulting from pollution of ground and surface waters. The 1970 act defines damages as the destruction to or loss of any real or personal property, except human beings. Unlike the 1970 law, the 1983 act does not provide any definition of damages within its statute. However, the 1983 act provides that injury victims may be able to recover “all damages” resulting from the discharge or other conditions of pollution. The amended 1970 act states that it applies to actions taken by both private and governmental entities when injuries result from the storage, transportation, and disposal of these products.

February 19, 2020

Punitive Damages in Florida Personal Injury Cases

by Frankl Kominsky Injury Lawyers

When someone is injured in a Florida accident, the state’s law allows them to file a civil suit against the responsible party. If successful, plaintiffs may be able to recover monetary compensation to cover lost wages, pain and suffering, past and future medical expenses, loss of consortium, and even funeral and burial expenses. This compensation is called compensatory damages. In some cases, plaintiffs can also file for what is called punitive damages. In contrast to compensatory, Florida punitive damages focus on punishing the defendant, rather than making the plaintiff whole.

Punitive damages are only available in a small percentage of cases, where the conduct of the defendant was particularly egregious. But when they are awarded, they can be set as high as $500,000. Thus, when they are sued, it is in the defendant’s best interest to ensure that the plaintiff does not seek punitive damages. Generally, Florida has two situations in which plaintiffs can receive punitive damages—when the plaintiff can prove either intentional misconduct or gross negligence. Intentional misconduct occurs when someone knows that their conduct was dangerous and could injure someone but did it anyway. Gross negligence occurs when someone, indifferent to the life and safety of others, acts extremely recklessly or carelessly.

Plaintiffs may sometimes want to amend their complaint to seek punitive damages after it has already been filed. Section 768.72(1) of the Florida Statutes does allow plaintiffs to do just that in cases where “there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” Whether or not a trial court grants this amendment is very important to a case; the Florida Supreme Court held 25 years ago that appellate courts cannot review a lower court’s decision to allow an amendment to a suit to include punitive damages so long as the judge follows proper procedures.

December 19, 2019

Florida Court Addresses Liability for Rear-End Accidents

by Frankl Kominsky Injury Lawyers

Recently, an appellate court addressed an appeal in a Florida car accident case hinging on issues regarding the presumption of negligence in rear-end accidents. The plaintiff appealed a trial court’s ruling in favor of the defendant, who the plaintiff claimed rear-ended her vehicle. The accident allegedly occurred when the plaintiff was approaching an intersection, and the car in front of her suddenly stopped. The plaintiff and the defendant simultaneously applied their brakes; however, the plaintiff was able to avoid hitting the car in front of her, but the defendant slammed into the plaintiff. After the plaintiff’s case was dismissed by the trial court, the plaintiff appealed, arguing that the defendant did not provide enough evidence to rebut the presumption of negligence.

Under Florida law, rear-end accidents create a rebuttable presumption that the rear driver was negligent. Generally, the only way in which a rear driver can rebut this presumption is if they provide evidence that shows that the presumption is “not as presumed” or misplaced. If the rear driver can rebut the presumption, the jury will then make the typical comparative fault determination. Rear drivers will often claim that the lead driver engaged in some behavior that made it impossible for the rear driver to avoid an accident.

Typically, Florida courts permit rear drivers to rebut the presumption under only four circumstances. Defendants can rebut the presumption if 1.) their vehicle suffers a mechanical failure, 2.) the lead driver suddenly stopped, 3.) the lead driver suddenly changed lanes, or 4.) the lead driver made an illegal stop. However, an abrupt or sudden halt by itself is not enough to rebut the presumption. Courts explain that drivers have a duty to remain alert and to keep a safe following distance at all times, especially at common stopping locations, such as intersections.

November 20, 2019

Appellate Court Issues Ruling in Florida Car Insurance Coverage Dispute

by Frankl Kominsky Injury Lawyers

Recently, an appellate court addressed whether a Florida plaintiff may recover uninsured motorist benefits after she suffered injuries at a mobile gym. According to the court’s opinion, the defendant ran a mobile gym out of his truck and trained the plaintiff for several years. To power the machines and equipment, the defendant plugged the mobile gym’s generator into an outlet at the woman’s home. This arrangement worked well until the woman suffered permanent injuries during one of her sessions. The woman settled negligence claims with the mobile gym owner and her personal trainer. However, she also filed an uninsured/underinsured motorist claim (UIM) with her insurance company. The insurance company claimed that its UIM policy does not apply to motor vehicles such as a mobile gym. Ultimately, the trial court found in the insurance company’s favor, and the woman appealed the ruling.

Car insurance coverage is an integral part of car ownership, and can protect motorists from disastrous financial burdens if they are involved in an accident. However, the Insurance Research Council estimates that over 12% of drivers do not have car insurance coverage. When a driver is involved in a Florida car accident with a UIM driver, they may face challenges in trying to recover for their damages. To address this inherent unfairness, many car insurance companies offer their policyholders UIM coverage. This protects drivers from high out-of-pocket costs if they are a victim of a hit-and-run or an accident with a negligent UIM.

When a Florida driver files a UIM claim with their insurance company, the company effectively steps into the shoes of the negligent driver. In many instances, the policy holder’s relationship with their insurance provider becomes adversarial, and claimants need to fight for their benefits.

October 30, 2019

Court Examines Summary Judgment Standard in Recent Florida Car Accident Case

by Frankl Kominsky Injury Lawyers

A Florida appellate court recently issued a written decision in which it examined the summary judgment standard in a negligence case arising out of a traffic accident. According to the court’s opinion, the accident occurred at an intersection when a driver of a sports utility vehicle (SUV) was heading south on the road, while the plaintiff, on a motorcycle, was driving north. The driver of the SUV was making a left turn when the plaintiff, still heading north, crashed into the right front fender of the SUV. The plaintiff, who testified that he was unable to stop in time to avoid the crash, was seriously injured.

The driver of the SUV stated that he did not see the motorcycle coming because his view of oncoming traffic was obstructed by newly planted palm trees at the median. The city, which was the defendant in this case, was responsible for the palm trees, which had wooden supports at their base, allegedly blocking the driver’s view. The motorcyclist sued the city for negligent design and placement of the palm trees, because they obstructed driver’s views of oncoming traffic when making a turn.

In response, the city claimed that it did not know, nor should it have known, that the planting of the palm trees with the wooden supports created a dangerous condition. Under Florida law, if the city was correct, the suit could not move forward. The city filed a motion for summary judgment to end the lawsuit, which was granted by the trial court. The plaintiff then appealed.

September 18, 2019

Florida Court Bars Plaintiff’s Claim in Recent Personal Injury Case Involving Claims of Faulty Construction

by Frankl Kominsky Injury Lawyers

In August, a state appellate court issued a written opinion in a Florida personal injury case discussing the statute of limitations for a negligence claim against a construction company. According to the court’s opinion, in 2012 the plaintiff was climbing up an attic ladder in his residence when it collapsed, causing injuries. Four years later, in 2016, the plaintiff sued the defendant construction company who had built the home, alleging negligence in the installation of the attic ladder.

The plaintiff appealed the trial court’s dismissal, arguing that the Florida law does not apply because the construction of the attic ladder was not an “improvement to real property.” On appeal, however, the state appellate court agreed with the defendant construction company and affirmed the trial court’s holding and the defendant’s motion to dismiss. According to the court’s opinion, the attic ladder constituted an “improvement to real property” because it provided additional utility to the home; residents could now access the attic without having to bring a stand-alone ladder to the attic opening. The court held that the attic ladder did not have to increase the value of the property or be essential to the property to constitute an improvement; merely providing the additional utility was enough. Additionally, the court found that the ladder was installed during the home’s initial construction, and required both labor and money to be installed, which further supported the conclusion that the ladder was an “improvement to real property.”

Having found that the construction of the ladder was an “improvement to real property,” the court then affirmed the dismissal of the suit because of the evidence that the plaintiff (owner) took possession of the house, which was fully constructed, in May of 2004. As such, the statute of limitations required by Florida law barred any claims after May of 2014, two years before the plaintiff filed suit. The plaintiff was thus barred from pursuing his claim against the defendant construction company, even though his injury occurred two years before the statute of limitations ran out.

August 28, 2019

Court Certifies Question to Florida Supreme Court Regarding Exculpatory Clauses in Contracts

by Frankl Kominsky Injury Lawyers

In a recent opinion, an appellate court addressed the validity of exculpatory clauses in Florida personal injury lawsuits. The court certified a question to the Florida Supreme Court regarding the extent to which exculpatory clauses are enforceable.

The issue stems from a contract dispute between a travel agency and a Florida corporation that specializes in website development. The two parties executed a service agreement that included a provision stating that the website developer would not be liable for any damages, and waived all claims against them. The lower court noted that the exculpatory clause rendered the entire service agreement illusory. The court explained that the contract was both illusory and amounted to an “unenforceable agreement to agree.” The case was appealed to the Florida Court of Appeals.

The Florida Court of Appeals explained that Florida contracts require several elements to be valid. A valid contract includes acceptance, consideration, and sufficient specification of essential terms. However, unsure how to rule on this specific issue, the court certified a question regarding the validity of exculpatory clauses in Florida contracts to the state’s high court.