South Florida Injury Attorneys Blog

June 22, 2016

Florida’s Fourth District Reverses in Hallandale Child Injury Suit

Although we expect all products to be “safe,” there are certain products for which our expectation of safety is heightened. Indeed, given the vulnerability of children, products intended for use by juveniles are expected to be designed in a manner that accounts for both youthful impetuousness and relative physical fragility. Nevertheless, not all products meet reasonable expectations. For instance, in a recent decision, Bogatov v. City of Hallandale Beach, the Fourth District Court of Appeal was tasked with determining whether liability could be imposed on the manufacturer of an allegedly defective jungle gym.

Bogatov started with a fall at the playground of a Hallandale Beach park. The plaintiff in this case is the father of a two-year-old who was at the playground with his nanny when he fell. The child sustained serious injuries as a result of the fall, and local law enforcement investigated the incident. During the investigation, the nanny, who was the only eyewitness to the fall, told law enforcement that the child was on the jungle gym at the time of the fall. Following this string of events, the father filed suit against the city of Hallandale Beach, alleging that the city’s negligence in maintaining the playground resulted in the child’s injury. The complaint was later amended to add the jungle gym’s manufacturer, which the plaintiff alleged was negligent in the design and construction of the jungle gym, in particular by failing to place grasping handles on the jungle gym.

May 11, 2016

Florida First District Addresses Access Requirements for Medical Negligence Claims

by Frankl Kominsky Injury Lawyers

Although it’s common knowledge among Florida’s medical malpractice practitioners that state law requires a complaint for medical negligence to be accompanied by an expert affidavit, it is not uncommon for some to not realize that simply having the affidavit is not necessarily sufficient to comply with the requirements of the law. Indeed, courts in our state regularly dismiss medical negligence cases supported by an affidavit because the plaintiff fails either to provide sufficient notice to the defendant of his or her intent to sue or to provide the defendant with sufficient access to information about the expert during this notice period. These subsidiary requirements under Florida’s medical negligence laws were at issue in a recent decision from Florida’s First District Court of Appeal, Morris v. Muniz.

Morris arose from an alleged act of medical negligence that occurred at Gulf Coast Medical Center. Specifically, the plaintiff alleged that the negligence of various medical professionals resulted in the death of her daughter, who died three days after the plaintiff gave birth to her. Following her loss, the plaintiff initiated a wrongful death lawsuit against various defendants, including Gulf Coast and several medical professionals involved in the birth. Shortly after the lawsuit was filed, the defendants moved to dismiss, arguing that the plaintiff failed to comply with pre-suit notice and investigation requirements under Fla. Stat. Section 766.205(2). The plaintiff opposed the motion, but the trial court dismissed the action, finding that the plaintiff failed to provide the defendants with reasonable access to information regarding her expert during the pre-suit investigation period. The plaintiff then brought the current appeal.

April 13, 2016

Florida’s First District Court of Appeal Delineates Limits of Workers’ Compensation Immunity

by Frankl Kominsky Injury Lawyers

In a recent decision, Mathis v. Sacred Heart Health Sys., Inc., Florida’s First District Court of Appeal reminded the lower courts that there are indeed limits to workers’ compensation immunity. Indeed, in a brief decision, the First District reversed a trial court order granting summary judgment in favor of a building owner that argued it was entitled to workers’ compensation immunity for injuries sustained by an employee of a cleaning company that had been contracted to provide cleaning services at the building.

The injuries at issue in this case occurred at Nemours Children’s Clinic, which is owned by Sacred Heart Health Systems, Inc. The injured employee worked for Coverall Service Company, which, pursuant to a contract with Sacred Heart, provided cleaning services at Nemours. While cleaning, the employee slipped and fell as a result of alleged negligence on the part of Sacred Heart in maintaining the property in a safe condition. After collecting workers’ compensation benefits, the employee brought a premises liability action against Sacred Heart. Following discovery, Sacred Heart moved for summary judgment, arguing that they were entitled to immunity pursuant to Section 440.11(1) of Florida’s workers’ compensation law. The trial court agreed and granted the defendant’s motion. The employee then brought the current appeal.

March 16, 2016

Florida’s Fifth District Reverses Jury Verdict for Plaintiff Injured after Colliding with Dead Horse

by Frankl Kominsky Injury Lawyers

In a recent decision from Florida’s Fifth District Court of Appeal, Manfre v. Shinkle, the court examined whether a jury correctly found that the defendant, a local sheriff, was liable for injuries arising from a motor vehicle accident. Although the accident at issue occurred at night on an unlit, rural road, the lack of light only played a marginal role. Instead, the crash was principally caused by the plaintiff’s collision with a dead horse, which the plaintiff claimed was in her path because of a local deputy’s negligent investigation of a report of roaming animals.

The accident at the heart of Manfre occurred shortly before sunrise on a dark road in rural Flagler County. The plaintiff was traveling at about 45 miles per hour when her vehicle struck a dead horse and flipped. As a result of the accident, the plaintiff suffered a variety of physical injuries. About an hour and a half before this accident, the county’s Sheriff’s Office received a call that reported two horses were roaming on the side of the road where the accident occurred. A deputy responded to the scene, where he saw the horses returning to the pasture. Evidence presented at trial indicated that the horses may have been spooked by the sheriff’s headlights. Satisfied that the horses’ return to the pasture settled the issue, the deputy cleared the call and left the scene without either ensuring that the horses were now safely enclosed or contacting the property owner. Following the deputy’s departure, at least one of the horses returned to the road, where it was struck by a vehicle and killed. It was the dead horse with which the plaintiff’s vehicle collided.

February 17, 2016

Florida’s Second District Court of Appeal Reverses Jury Verdict for Single Error

by Frankl Kominsky Injury Lawyers

It’s a subject we have mentioned on several occasions, but it’s one that bears repeating. Even a single error can be damaging to a case, or lead to wasteful and duplicative effort for all involved. Indeed, as the defendants in a recent case before Florida’s Second District Court of Appeal, Soto v. McCulley Marine Servs., Inc., now know, litigants should endeavor to get things right the first time because even if an error works in your favor, it may ultimately just lead to wasted effort.

McCulley began with a drowning that occurred on Independence Day 2009. In 2009, Manatee County had a program to create artificial reefs in the Gulf of Mexico. The program involved considerable amounts of concrete debris on other materials. Accordingly, the county set up a staging area at the southeastern end of Anna Maria Island, adjacent to Coquina Beach and Bayside Park. The area is popular for visitors, especially those who enjoy water sports. The defendants in this case were enlisted by the county to help build the reef. In 2009, Independence Day fell on a Saturday, and the defendants did not wish to work over the holiday weekend. Accordingly, the captain of a tugboat involved in the project moored the tugboat and its barge adjacent to a dock in the staging area. On Independence Day, the decedent was operating a jet ski near the tugboat and barge. During his journey, the jet ski stalled. The tidal currents were particularly strong, and the decedent became separated from the jet ski. His friends came to assist him, but the decedent drowned. His body was found under the tugboat.

January 13, 2016

Florida’s Third District Reduces Damages Award in Auto Accident Case

by Frankl Kominsky Injury Lawyers

Although the end of a trial often means finality, seasoned litigators understand that, at least in some cases, it may simply be a precursor to protracted appellate battles. Indeed, a favorable ruling for a plaintiff is often not secure, for dissatisfied defendants will often take the case to an appellate court, seeking reversal on any ground possible. As the plaintiff in Ortega v. Belony, a recent case before Florida’s Third District Court of Appeal, now knows, a trial court victory is often just the beginning.

Ortega arose from a motor vehicle accident in Miami-Dade County. As a result of the collision, the driver of one of the vehicles involved, who is the plaintiff in this case, suffered a broken neck. The plaintiff was hospitalized for eight days following the accident. Rather than undergoing surgery to repair the injury, the plaintiff elected to wear a “halo” for three months. During his rehabilitation, the plaintiff had difficulty sleeping and needed assistance with ordinary tasks such as bathing. Following the three months, the halo was removed, and the plaintiff only complained of residual back pain. His neck had almost fully healed, but the plaintiff sought additional treatment from an orthopedic surgeon. The surgeon recommended surgery. However, the plaintiff again declined and instead opted for an injection treatment. The treatment was successful, and by the time of the trial, the plaintiff did not have difficulty performing daily activities and had not returned to the surgeon for any additional treatments.

December 16, 2015

First District Court of Appeal Affirms in Boating Negligence Case

by Frankl Kominsky Injury Lawyers

Under Florida law, a plaintiff has two years to bring a suit for negligence. See Fla. Stat. § 95.11. Although the waters surrounding our state play host to a number of accidents, many potential litigants are surprised to learn that the Florida legal rules, including the aforementioned statute of limitations, are often not those that govern disputes that arise on the seas. Instead, maritime law controls many of these cases, and potential litigants should be aware of the implications that these differing legal rules may have for their lawsuits. For instance, these differences were at the heart of a recent decision from Florida’s First District Court of Appeal, Lupola v. Lupola, which concerned the differing statutes of limitations for negligence under maritime and Florida law.

The incident at issue in this case occurred in July 2010. The plaintiff and her husband were on a raft that was being pulled by a boat operated by her father-in -law. At one point during the trip, the raft went airborne and then hit the water with enough force to eject the plaintiff and her husband from the raft. Both the plaintiff and her husband were injured and received medical treatment the same day. A little less than two years later, the plaintiff filed suit against her father-in-law and the manufacturer of the raft, BRP US, Inc., alleging negligence against the former and products liability against the latter. The plaintiff conceded that maritime law applied but argued that her claim was subject to equitable tolling because her husband’s domineering attitude prevented her from seeking legal advice for some time after the accident. The trial court granted the defendants’ motion, finding that the plaintiff had not shown the grounds for equitable tolling, and therefore the action was time-barred. The plaintiff then appealed to the First District.

November 25, 2015

Supreme Court of Florida Further Limits Admissibility of Collateral Source Evidence

by Frankl Kominsky Injury Lawyers

Under the common law, collateral source evidence was generally inadmissible for both determinations of liability and damages. Finding that this rule promoted double recovery in certain instances, the Florida legislature abrogated this rule in the 1980s and adopted the current set-off rule, which requires a trial court, with certain exceptions, to reduce a damages award by “the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources.” Fla. Stat. § 768.76 (1). Although the collateral source rule was abrogated with respect to damages, Florida courts have found the impact of the rule limited with respect to the evidence admissible to a jury for making a determination of liability. However, the Florida Supreme Court articulated one major expectation to the common law collateral source rule in Fla. Physician’s Ins. Reciprocal v. Stanley, 452 So. 2d 514 (Fla. 1984). In Stanley, the court held that “evidence of free or low cost services from governmental or [charities] available to anyone with specific disabilities is admissible on the issue of future damages.” Given the uniqueness of this rule, Florida courts have after struggled with its application and, in many cases, limited it to the particular facts. For example, the Supreme Court of Florida was once again called upon to grapple with the scope of Stanley in Joerg v. State Farm Mutual Auto. Ins. Co.

The facts underlying Joerg are quite unfortunate. The plaintiff in this case was a developmentally disabled adult who was struck by a car while riding his bicycle in November 2007. The plaintiff had lived with his parents for his entire life and had never been employed. Following this accident, the plaintiff brought a negligence suit against the driver of the other vehicle and his personal uninsured motorist insurer, State Farm Mutual. Prior to trial, the plaintiff filed a motion to limit introduction of evidence about collateral sources, including benefits under Medicare and Medicaid. The trial court ultimately ruled that the insurer could introduce evidence of “future medical bills for specific treatments that are available . . . to all citizens regardless of wealth or status” but that evidence of future Medicare and Medicaid payments could not be introduced. The insurer appealed, and the Second District Court of Appeal affirmed the trial court ruling, except finding that the future Medicare payments should not have been excluded under the collateral source rule. An appeal to the Florida Supreme Court followed.

November 18, 2015

Florida’s Fifth District Reverses Dismissal in Disney Paintball Tournament Personal Injury Case

by Frankl Kominsky Injury Lawyers

In a recent decision, Peterson v. Flare Fittings, Inc., Florida’s Fifth District Court of Appeal examined the liability of various parties for an injury that occurred at a paintball tournament. Although the plaintiff in this case was a competitor in the competition, the injury at issue had nothing to do with flying paint.

The injury at issue in this case occurred on November 8, 2006. On that day, the plaintiff arrived at a Disney-owned facility that was serving as the venue for a paintball event being hosted by Paintball Sports Promotions, LLC. In addition to a paintball tournament, the event hosted a trade show for the advertising and sale of paintball-related goods. Although the plaintiff arrived on November 8, he was not set to compete until the 10th. While venturing through the vendor area on the 8th, the plaintiff alleges that he was struck in the head by a balloon, which he described as 10 feet in diameter and attached to a tree beside a tent that was being operated by either Flare Fittings, Inc. or Crossfire Paintball, Inc. The plaintiff acknowledged that he did not know what caused the balloon, which had been flying about 70 to 100 feet above the ground, to fall, but he claimed that the impact of the balloon knocked him down, dazed him, and left him in pain. The incident was reported to a manager at Disney, and the plaintiff alleges that the manager told him that Disney would cover his medical costs. The plaintiff sought treatment the same day. After his x-ray came back negative, the plaintiff left the hospital with prescriptions.

November 11, 2015

Florida’s Fourth District Addresses Discovery Dispute in Municipal Personal Injury Case

by Frankl Kominsky Injury Lawyers

Following the filing of a complaint, litigants spend a considerable amount of time engaged in discovery, the stage of litigation during which the parties exchange information that will likely be relevant for the development and adjudication of the case. Although both state and federal discovery rules are quite broad, disputes during the discovery process are far from uncommon. Indeed, even when the information may be relevant, litigants will often cite various forms of privilege in an effort to preclude the exchange of information. When the parties reach an impasse, the trial court is often asked to resolve the dispute, and in a recent decision, City of Port St. Lucie v. Follano, the Fourth District Court of Appeal examined the responsibilities a trial court has in resolving a discovery dispute.

Follano began when the soon-to-be plaintiff stepped into an uncovered sewer access pipe. The plaintiff was caught up to her knee and had to be extracted by the fire department. On the day of the accident, photographs were taken by a representative for the City of Port St. Lucie, the defendant in this case. The city’s photographs show the uncovered sewer pipe, but the city argued that much of the area had been altered by the firefighters who were working in the area. The plaintiff did take photos of the site of the accident on the following day. However, the sewer had been covered by that time. During discovery, the plaintiff moved for an order compelling the city to produce the photographs, arguing that these photos were the only available evidence of the pipe’s appearance at the time of the accident. The city opposed the motion, contending that the photos fell within the work product doctrine. Without examining the photos and relying on the representations of the plaintiff’s counsel, the trial court granted the motion compelling production. The city appealed the court’s decision.