South Florida Injury Attorneys Blog

August 6, 2014

Workplace Fatalities on the Rise in Broward County

In a recent article, the Sun Sentinel examined the sudden rise in the number of workplace fatalities in Broward County, Florida. Although the post-recession rejuvenation of South Florida’s construction market is welcome news economically, increased demand for construction work has, according to sources in the story, led to the hiring of more inexperienced workers and failure to adhere to basic safety precautions, such as the installation of guardrails and the proper rigging of worksite machinery. Alarmingly, there have been 11 work-related deaths in Florida so far this year, including six in Broward County since the beginning of June. The most recent death occurred at a car dealership construction site in Fort Lauderdale, where a beam collapsed and knocked several workers off a ladder. In response to this sudden rise in fatalities, local members of Safety Alliance for Excellence (SAFE), a collaborative organization of contractors based in Miami, are set to meet with officials from the local office of the federal Occupational Safety & Health Administration to discuss the measures that should be taken to address the problem.

Like almost all other states, Florida has a workers’ compensation scheme that governs liability and financial recovery for injuries arising out of and in the course of employment. The provisions of Florida’s workers’ compensation scheme are codified in Chapter 440 of the Florida Statutes. Pursuant to § 440.10, all contractors and subcontractors engaged in either private or public construction in the state are required to maintain workers’ compensation insurance coverage for their employees. Pursuant to § 440.11, the workers’ compensation scheme is the exclusive remedy for liability arising from injury or death resulting from workplace accidents. It immunizes employers from common law negligence liability.

There are only two narrow exceptions from the exclusivity provision of the scheme. These are if the employer fails to secure payment as provided by the provisions of the workers’ compensation scheme, or if the employer commits an intentional tort causing the injury or death of the employee. See §§ 440.11(a)-(b). For the purposes of the second exception, an employer’s actions are deemed to constitute an intentional tort only if they are either deliberately intended to injure the victim or constitute conduct the employer knew, based on prior similar accidents or explicit warning, was virtually certain to result in injury or death. Furthermore, the employee must have been unaware of the attendant risks because the danger was either unapparent or deliberately concealed or misrepresented by the employer. See § 440.11(b).
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July 30, 2014

Federal Court Dismisses Several Counts in Personal Injury Case Following Cruise Ship Accident

by Frankl Kominsky Injury Lawyers

As the home of two of America’s three busiest cruise ship ports and the headquarters of numerous cruise companies, the South Florida metropolitan area hosts a considerable amount of litigation involving personal injury at sea. A common surprise to many litigants, however, is that Florida law does not apply in these actions. Instead, federal admiralty law, also known as maritime law, controls the disposition of recovery for those harmed aboard ships on navigable waters. One recent case, Gandhi v. Carnival Corporation, demonstrates how application of admiralty law can limit the possibility of full recovery for those injured on cruise ships and the importance of understanding the nuances of this distinct body of law.

In Gandhi, parents of a child injured aboard a Carnival Cruise Lines ship brought suit against the company, both personally and on their daughter’s behalf. The plaintiffs’ daughter was injured while standing in a ship elevator when one of her arms was drawn into a space into which an elevator door was closing. Although her arm was ensnared, the elevator door attempted to open and close several times, a process which continued until a fellow passenger freed the arm with assistance of a chair leg. As a result, the child suffered a deep laceration to one of her elbows, severing of several tendons, and a fracture. Her father, who witnessed the entire ordeal, further alleged to have suffered severe emotional trauma. The parents brought suit against Carnival in the U.S. District Court for the Southern District of Florida for the following claims: a negligence claim for damages of the minor child, a claim for damages pursuant to the negligent infliction of emotional distress, a damages claim for medical expenses incurred, and a damages claim relating to the loss of filial consortium. Carnival brought a motion to strike provisions from the first claim and to dismiss the remaining claims, and the court, applying admiralty law, sided with Carnival.

First, as a preliminary matter, the court noted that general maritime law controlled in this action and that neither general common law nor state law would be consulted unless there was an absence of maritime law on an issue to be decided. Next, the court moved to the plaintiffs’ claim of negligence. Although Carnival did not move to dismiss this claim, it did move to strike parts of the pleading that appeared to improperly assert the doctrine of res ipsa loquitur. Generally, the doctrine of res ipsa loquitur permits a jury or other fact-finder to infer negligence when the circumstances of person’s injury are of a variety that usually does not occur in the absence of negligence. Although maritime law allows for the inference of res ipsa loquitur to be raised in a claim for negligence, the court agreed that is was improper to raise the doctrine in the pleadings, since res ipsa loquitur is not a cause of action but rather an evidentiary principle on which a court may, in its discretion, later instruct the jury. Next, the court turned to the negligent infliction of emotional distress claim. Although Florida law allows a relative bystander to recover for negligent infliction of emotional distress when he witnesses the negligent injury of a loved one and suffers emotional trauma leading to demonstrable physical harm as a result, see Champion v. Gray, 478 So.2d 17 (Fla. 1985), maritime law adheres to the “zone of danger” test. Pursuant to this standard, one may not recover for negligent infliction of emotional distress unless he or she “sustain[s] a physical impact as a result of a defendant’s negligent conduct, or [is] placed in immediate risk of physical harm by that conduct.” Although the father in this case witnessed the injury of his daughter, there were no facts suggesting that he was in an imminent zone of danger. Accordingly, pursuant to the standard set forth in maritime law, the father could not recover for negligent infliction of emotional distress.
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July 23, 2014

Florida Court Holds that Parents Not Liable for Adult Son’s Assault on Relatives

by Frankl Kominsky Injury Lawyers

In the aftermath of tragedy, it is a natural reaction to assign blame to others, whether attribution is justified or not. This impulse is at the heart of the Fourth District Court of Appeals’ recent decision in Knight v. Merhige, in which the court held that the parents of a man who fatally shot several relatives at a family gathering on Thanksgiving of 2009 could not be held liable for their son’s conduct. Although the decision will likely do little to mend fractured intra-familial ties, the Fourth District’s holding demarcates a clear line with respect to when someone may be held liable for the conduct of another.

As noted above, the suit at issue follows a tragic incident on November 26, 2009. On that day, the son of the defendants in this case, who was 35 at the time, retrieved a gun during an annual family get-together and fatally shot four of his relatives, including both of his sisters, and seriously injured another. After the shooting, the son pled guilty to the murders and was sentenced to life imprisonment. The son had a long history of violence and mental health issues and had on several previous occasions threatened and assaulted members of his family. Although he had been prohibited from attending Thanksgiving festivities the year before at the request of the relatives who were hosting, his parents invited him to attend in 2009 without either seeking permission of the hosts or informing other family members. Until shortly before the shooting, the son lived with the parents, but his parents had recently elected to set up him up in his own condominium while continuing to provide him with financial support, some of which was used to procure firearms. A housekeeper who cleaned the son’s condominium and routinely reported to parents informed them that he had ceased attending mental health treatment and taking medication.

Given the context of the son’s assault, relatives brought three separate wrongful death and personal injury lawsuits against the parents, which were consolidated for appeal. Although they were distinct, the suits were predicated on similar theories of negligence. Specifically, the lawsuits alleged the following: 1) by furtively inviting their son, the parents created a “foreseeable zone of risk” for the relatives, and they failed to exercise prudent care in managing the risk they created; and 2) the parents had a “special relationship” to their son such that they had to duty to exercise reasonable care in his “supervision, guidance, control, direction, security, monitoring and management,” and failure to exercise reasonable care amounted to a breach of this duty. The trial court dismissed each of the suits, noting the general rule that “there is no duty to control the conduct of a third person to prevent him from causing physical harm to another,” and holding that the respective plaintiffs had failed to overcome the burden of demonstrating a special relationship that would give rise to a legal duty to control the son’s conduct. The plaintiffs appealed the dismissals.

July 16, 2014

Supreme Court of Florida Hears Disabled Firefighter’s Workers’ Compensation Case

by Frankl Kominsky Injury Lawyers

Although most claimants for disability benefits never imagine that the resolution of their claims will create much in the way of buzz, one injured firefighter’s request for benefits has led him all the way to the Supreme Court of Florida. On June 5, the Supreme Court of Florida heard oral argument in Westphal v. City of St. Petersburg, which addresses a recurring problem for claimants currently receiving temporary total disability benefits and seeking to acquire permanent total disability benefits. Specifically, the case deals with a “statutory gap” created by the provisions § 440.15 of the Florida Statutes, which leaves certain disabled workers without any form of disability benefits as they transition from temporary to permanent total disability.

Bradley Westphal, a firefighter and paramedic, injured his knee and back while moving heavy furniture during a fire. Westphal’s severe injuries resulted in nerve damage and required both spine surgery – specifically, a five-level fusion of the lumbar spine – and a host of other medical treatments. His employer accepted his injury as compensable and paid Westphal temporary total disability benefits pursuant to § 440.15(2)(a). Entitlement to temporary total disability benefits is limited to 104 weeks, and Westphal, who remained unable to work per medical advice, filed a claim for permanent total disability benefits towards the end of his temporary benefit entitlement window. To establish entitlement to permanent total disability benefits, one must show “not only total disability upon the cessation of temporary benefits but also that total disability will be existing after the date of maximum medical improvement.” City of Pensacola Firefighters v. Oswald, 710 So. 2d 95 (Fla. 1st DCA 1998). Westphal’s claim was denied based on the testimony of the physician who performed Westphal’s second surgery and stated that Westphal was still recovering from his second surgery and, thus, it was too soon to determine whether he had attained maximum medical improvement. Accordingly, although Westphal was presently “totally disabled” and could very well remain totally disabled even with maximum improvement in condition, he could not receive permanent benefits because improvement beyond total disability was still conceivable. Westphal would therefore have to wait until evidence was conclusive that he would remain totally disabled even after attaining maximum medical improvement before he could receive benefits.

Westphal appealed the denial of his claim to Florida’s First District Court of Appeal. The original panel of three judges unanimously held that the denial of benefits amounted to an unconstitutional denial of access to the courts under article I, section 21, of the Florida Constitution. However, the full panel of judges of the First District Court of Appeal granted a motion for rehearing en banc. In this later decision, the en banc court withdrew the panel decision but still found in Westphal’s favor. The court reversed an earlier appeals court precedent and adopted a new statutory construction of the disability provisions, holding that “a worker who is totally disabled as a result of a workplace accident and remains totally disabled by the end of his or her eligibility for temporary total disability benefits is deemed to be at maximum medical improvement by operation of law and is therefore eligible to assert a claim for permanent and total disability benefits.” Finding that their decision concerns a question of great public importance, the court then certified the case for review by the Supreme Court of Florida.

July 9, 2014

Hallandale Crane Collapse Leads to One Death and OSHA Investigation

by Frankl Kominsky Injury Lawyers

Last month, a crane being used for construction on a lot in an affluent enclave of Hallandale Beach collapsed, leading to the death of one construction worker. The collapse occurred at approximately 9:40 AM, as the crane was being moved in the worksite, located at the 400 block of Alameda Drive in Hallandale. According to reports, the crane started to wobble during the moving process and eventually tipped over. Although the workers scattered, one was unable to flee in time and was struck by the falling crane. The crane also hit a neighboring home, causing damage to the roof and air-conditioning system. The police as well as representatives from the U.S. Occupational Safety and Health Administration (OSHA) are investigating what may have caused the collapse, and both the crane’s driver and boom operator submitted blood samples as part of the investigation.

Unfortunately, crane-related fatalities are not uncommon. Since 2011, there have been six crane-related deaths in Florida, and according to the U.S. Department of Labor, nearly 100 people die annually in crane and derrick accidents. Following a spate of these accidents, including a 2008 incident in downtown Miami that caused two deaths, OSHA in 2010 updated its crane regulations, which had largely been unchanged since they were first enacted in 1971. In addition to promulgating regulations, OSHA also performs worksite investigations and issues citations for safety violations. However, many of these investigations occur, as in this recent incident, after an accident has already occurred.

Certain states and municipalities have implemented their own crane regulations. In fact, following a series of accidents and less than a month before the aforementioned accident in downtown Miami, Miami-Dade County issued an ordinance regulating crane inspection and operator certification. Ultimately, a federal judge ruled that certain provisions of the ordinance conflicted with OSHA regulations and were thus preempted by federal law and unenforceable. However, the Florida Legislature went a step further in 2012 when it passed House Bill 521. HB 521 preempts all local regulation of “hoisting equipment and persons operating the equipment.” Given the paucity of related state law and regulation, HB 521 in effect limits the regulation of cranes to existing federal regulation.

June 25, 2014

Palm Beach Teen Takes the Stand in Medical Malpractice Case

by Frankl Kominsky Injury Lawyers

Seventeen years after his mother was involuntarily administered laxatives by medical professionals acting at the behest of federal agents, Jordan Taylor took the stand in a Miami-Dade County Courthouse on Monday to discuss the circumstances of his life that could be linked to that regrettable event.

On February 14, 1997, Taylor’s mother was detained by Customs Enforcement agents who suspected she was smuggling drugs into the United States. For the following three days, the mother, who is a U.S. citizen by birth and was seven months pregnant at the time, was held at Jackson Memorial Hospital, where medical professionals acting under the direction of the aforementioned Customs officials administered prescription laxatives in order to determine whether she was in fact carrying drugs.

The laxative administered to her, called GoLytely, had not been recommended for pregnant women in 1997, and its effects had not yet been studied in either pregnant women or pregnant animals. According to the complaint, Taylor’s mother complained of abdominal pain and vaginal bleeding, but pressure to take the laxative persisted. Shortly after this unwanted stay at Jackson Memorial, she prematurely gave birth to Taylor.

June 18, 2014

Davie Police Identify Men Involved in Possible Wrong-Way Driving Accident

by Frankl Kominsky Injury Lawyers

On Wednesday, June 18, 2014, police identified the two men who were injured on Tuesday in a possible wrong-way motor vehicle accident on a stretch of State Road 84 in Davie. Dale Engle, the Davie Police Captain, identified the man reported to have been driving west in the eastbound lanes of State Road 84 before colliding with a black pickup truck. Prior to the accident, police had received several calls about a “reckless” driver headed in the wrong direction on State Road 84.

Police are still in the process of investigating the crash, but Captain Engle said that neither drugs nor alcohol appear to have contributed to the crash. He further noted that, although the roads were wet, weather conditions did not seem to have been a factor.

The driver of the vehicle headed in the wrong direction, who resides in Miami, may have, according to Engle, been unfamiliar with the roads in the area, which have been under construction for an extended period of time as Interstate 595 is widened. The driver of the black pickup truck, who was treated at Broward Health Medical Center for broken bones in his feet, is conscious and said he did not remember seeing the other vehicle before the collision.

June 11, 2014

Stand Your Ground: Immediate Immunity to Civil Suit?

by Frankl Kominsky Injury Lawyers

It goes without saying that Chapter 776 of the Florida Statutes, more commonly known as Florida’s Stand Your Ground Law, has recently been the subject of heated discussion. Although commentators across the nation have extensively delved into the substance of the law and proffered opinions on Chapter 776’s merits and detriments, few have looked at the law’s implications outside of the criminal setting.

Recently, however, the Third District Court of Appeals assessed the importance of Stand Your Ground Law in the civil setting. In Professional Roofing and Sales, Inc. v. Flemmings, the Third District Court of Appeals determined whether the immunity granted pursuant to Chapter 776 in a previous criminal case definitively foreclosed liability in subsequent personal injury litigation.

Mr. Flemmings, the plaintiff in this action, brought the suit at issue against his former coworker and employer for an incident dating back to the winter of 2008. In 2008, Mr. Flemmings was beaten with a baseball bat by a coworker who was later arrested and charged with aggravated battery with a deadly weapon. In the criminal case, the coworker argued that the battery was a justifiable use of force pursuant to Florida’s Stand Your Ground Law and brought a motion to dismiss the charges. After conducting an evidentiary hearing, the criminal court granted the motion. Prior to final disposition in the criminal case, Flemmings filed a personal injury suit against the coworker and his employer. Following the criminal court’s determination, the defendants moved to have the civil case dismissed, arguing that the criminal court’s determination barred civil liability. The trial court denied the motion and stated that the issue was more appropriately handled at the summary judgment phase. The defendants sought immediate review of the decision.

June 4, 2014

New Florida Evidentiary Standard Tips the Scale in Premature Birth Appeal

by Frankl Kominsky Injury Lawyers

Although changes to the law of evidence do not typically engender much in the way of debate, Florida litigants are now seeing the harsh realties that can be associated with revisions that typically go unnoticed. In Perez v. BellSouth Telecommunications, Inc., a panel of judges for the Third District Court of Appeals unanimously affirmed a trial court decision to exclude testimony from the plaintiff’s personal obstetrician, a physician with over two decades of experience, in part because of recent legislation that placed stricter limits on the admissibility of expert testimony.

This decision follows passage of Florida House Bill 7015, which amended Section 90.702 of the Florida Evidence Code, the provision governing the admissibility of expert testimony in both civil and criminal litigation. Prior to passage of HB 7015, courts in Florida applied what is commonly known as the “Frye Standard.” Pursuant to this standard, Florida Courts permitted the inclusion of expert opinion testimony so long as the testimony was based on scientific methods that were sufficiently established and had gained general acceptance in the particular field to which they belong.

HB 7015, however, did away with Frye and incorporated the “Daubert Standard,” a stricter evidentiary rule that has been utilized in Federal Courts since 1993. Daubert, unlike Frye, places greater emphasis on the scientific methodology from which an expert’s opinion is formed, and induces greater exclusion of evidence that is not derived from empirical testing, peer review, or controlled examination. Accordingly, even if an expert’s testimony may be relevant and based on sound reasoning or ample practical experience, it may still be excluded for a lack of scientific verifiability.

May 28, 2014

Conceding Liability: A Good Strategy?

by Frankl Kominsky Injury Lawyers

Typically, the thought of conceding liability in a negligence suit runs counter to conventional legal strategy. In fact, attorneys often spend considerable time trying to counteract even banal admissions that occur prior to formal litigation that could be construed as declarations of liability. However, a recent case coming from Florida’s Second District Court of Appeals demonstrates how a proactive admission of guilt can occasionally work in a defendant’s favor.

In Swanson v. Robles, the Second District Court of Appeals held that allowing evidence of a defendant’s drug use during the first phase of a trial when the defendant had already admitted liability for both compensatory and punitive damages was reversible error. The case arose from a traffic accident in October 2008. A truck being driven by the defendant struck a vehicle owned by the City of Tampa and a city employee who was unloading traffic counters at the rear of the vehicle. The city employee died immediately following the collision, and his estate brought a wrongful death action against the driver, seeking both compensatory damages for the deceased’s widow and compensatory and punitive damages for the estate. The defendant brought a motion to bifurcate the trial, so that evidence of his drug use (Xanax, methadone, and marijuana) would not be admitted and prejudice the jury. In light of his admission of liability, the defendant argued that such evidence was no longer probative with respect to determining whether or not he was liable for compensatory damages and punitive damages or for determining the amount of compensatory damages. The evidence was not excluded, and the defendant brought an appeal, arguing that permitting the evidence was in error.

The Second District Court of Appeal agreed. The Court found that, since the defendant had conceded liability with respect to both compensatory and punitive damages, evidence of his drug use was no longer relevant for determining liability for either sort of damages or with respect to determining the amount of compensatory damages. Although compensatory damages include “pain and suffering,” the court held that possible knowledge of drug use was not probative for determining the amount of damages reflecting loss of companionship and protection. In addition, the court held that, while evidence of drug use may be probative with respect to determining the amount of punitive damages, the amount of those damages would be handled in the second stage of the bifurcated trial, and thus the evidence of the drug use only served to inflame the jury during the first stage and lead to a possibly higher assessment of compensatory damages.