South Florida Injury Attorneys Blog

October 8, 2014

Supreme Court of Florida Answers Certified Question Regarding Dangerous Instrumentality Doctrine

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 17, 2014

Federal District Court Grants Summary Judgment in Medical Malpractice Case

by Frankl Kominsky Injury Lawyers

A common legal issue that arises in the context of imprisonment or other forms of detention is liability for failing to provide or negligently providing medical care to those detained. Irrespective of the location of medical malpractice, however, common evidentiary standards required for medical malpractice actions apply. These issues are at the core of the Southern District of Florida’s recent decision in Segundo v. United States, which involves claims alleging negligence on the part of the medical staff leading to the cardiac death of a detainee at Krome Detention Center in South Florida.

The detainee had been transferred to Krome Detention Center in 2010, and his Transfer Summary noted his severe, preexisting diabetes. At the time of booking, the detainee underwent a medical evaluation that corroborated this prior medical history of diabetes. Following admission, the detainee continued to take oral diabetic medications, and his blood glucose level was checked twice a day. The admission medical evaluation also included a screening EKG, the results of which came back normal and did not indicate any acute or chronic myocardial ischemic changes or other findings associated with coronary artery disease. From the time of his arrival until the day before his death, the detainee did not complain of chest pain, shortness of breath, weakness, fatigue, or other symptoms associated with cardiac dysfunction.

However, the day before his death, Krome medical staff evaluated the detainee for a sore throat, runny nose, and cough. The day after, the detainee stated he felt ill but was nonetheless communicative and able to move. While staff was taking the detainee to the Urgent Care Center at the Krome compound, he suffered an arrhythmia and died. A autopsy report found the detainee’s cause of death to be severe atheroscleros in the left anterior descending coronary artery. Given the normal EKG just days before the death, no evidence in the record suggested that medical staff at Krome should have predicted the subsequent cardiac death. Following the detainee’s death, the personal representative for his estate brought a wrongful death lawsuit against the United States under the Federal Torts Claims Act, alleging negligence on the part of Krome’s officers, agents, and employees.

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.

August 27, 2014

Supreme Court of Florida Invokes Constitutional Provision in Decision on Proper Scope of Discovery in Medical Malpractice Suit

by Frankl Kominsky Injury Lawyers

Although the average course on civics or government thoroughly reviews the provisions of the United States Constitution, many overlook the importance of state constitutions as sources of important rights. While certain state constitutional provisions – for instance, the Florida Constitution’s analog to the Fourth Amendment – are interpreted co-extensively with their federal counterparts, some do provide particularized protections that should not be overlooked. In a recent case, Ampuero-Martinez v. Cedars Healthcare Group, the Supreme Court of Florida raised one such provision: Article X § 25(a) of the Florida Constitution.

Art. X § 25(a) of the Florida Constitution, titled “Patients’ right to know about adverse medical incidents,” provides Floridians with the right to “have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.” Ampuero-Martinez arose from a discovery dispute in a medical malpractice case involving the death of the plaintiff’s father at a medical facility in Miami-Dade County. The plaintiff sought medical records from the facility where her father’s death occurred, and the defendant medical facility objected to the production request. The trial court overruled this objection, but the defendant filed an immediate appeal to the Third District Court of Appeals, which reversed the trial court in part, holding that the trial court failed to properly limit discovery pursuant to § 381.028(7)(a) of the Florida Statutes.

The Supreme Court’s decision in Ampuero-Martinez is quite short for good reason. Three years prior to the Third District Court of Appeal decision, the Supreme Court of Florida had definitively held that § 381.028(7)(a) unconstitutionally contravened the constitutional protection afforded by Art. X § 25(a). See Florida Hosp. Waterman, Inc. v. Buster, 984 So.2d 478 (Fla. 2007). Consequently, the Supreme Court quashed the Third District’s decision and remanded the case to the trial court for reconsideration in accordance with the standards set forth in Buster. In Buster, the court held that several provisions of § 381.028, legislation that had been enacted by the Florida Legislature to “implement” and otherwise give force and effect to Art. X § 25(a), contravened the broad rights provided by the then newly-enacted constitutional provision. Specifically, the court noted the following conflicts:

August 20, 2014

Supreme Court of Florida Reverses in Pinecrest Personal Injury Case

by Frankl Kominsky Injury Lawyers

A night at the bar with friends does not typically end with someone wielding a tomahawk, but as you will see below, the facts of the Supreme Court of Florida’s decision in Dorsey v. Reider are not like those of a typical personal injury case.

In Dorsey, the plaintiff was injured at the conclusion of a night of imbibing with the defendant and another man with whom the defendant was acquainted at a bar in Pinecrest, Florida. On that night, the defendant, who was the friend of the plaintiff in this case, became increasingly belligerent and was threatening to fight others. In light of his friend’s conduct, the plaintiff used a few choice words to tell the defendant his behavior was obnoxious and proceeded to leave. The defendant and his friend followed. As the plaintiff walked through the parking lot, his path took him between the defendant’s truck and an adjacent vehicle. The defendant ran to the other side while the plaintiff was passing between the vehicles and blocked the plaintiff’s path as the acquaintance blocked him in on the other side. An argument ensued, which lasted for several minutes before the plaintiff heard the truck door open and turned to find that the acquaintance had procured a tomahawk from the truck. The plaintiff then asked the defendant, “What is this?” The defendant did not respond, and the plaintiff then attempted to push the defendant aside in order to escape. After about 15 seconds of struggle, the plaintiff was struck in the head with the tomahawk, which rendered him unconscious. The defendant and the acquaintance then fled. Sometime thereafter, the plaintiff awoke and drove himself to the hospital. As a result of the attack, the plaintiff suffered a variety of serious injuries and continues to suffer from blurred vision, dizziness, and chronic headaches.

Unsurprisingly, the plaintiff brought suit for his injuries. Following a jury trial, the plaintiff was awarded over 1.5 million dollars in damages. On appeal, the Florida Third Circuit Court of Appeal reversed the trial court decision. The Court of Appeal determined that the defendant, who did not actually strike the victim with the tomahawk, did not owe a duty of care to the plaintiff in this case, since there was “no evidence [the defendant] “colluded with [the acquaintance] or knew that [the acquaintance] had the tomahawk and would strike.” Reider v. Dorsey, 98 So.3d 1228 (Fla. 3d DCA 2012). The Supreme Court of Florida, however, determined that this holding was in error.
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August 13, 2014

Fourth District Court of Appeal Reverses Trial Court in Broward Auto-Accident Appeal

by Frankl Kominsky Injury Lawyers

As the Fourth District Court of Appeal’s opinion in Marina Dodge, Inc. v. Quinn demonstrates, sometimes the hardest part of a lawsuit is getting the opposing party in court. In Quinn, the Court of Appeals found that the courts of Florida could not exercise personal jurisdiction over two New York auto-retailer corporations that had been sued following a motor vehicle accident in Broward County, Florida.

As noted above, Quinn followed a 2007 motor vehicle accident that led to the serious injury of one of the drivers. The injured driver, the plaintiff in this case, purchased the vehicle involved in the crash in New York four years earlier, when she was still a resident there. Sometime after this transaction but before the accident, the driver relocated to South Florida, where she now resides. After the crash, the seriously injured driver sued the other driver involved in the accident as well as Marina Dodge, Inc. and Webster Auto Brokers, Inc., two New York auto retailing corporations, in the Broward County Circuit Court. With respect to the auto retailers’ liability, the plaintiff argued that the vehicle she purchased in New York was defective and that the defective condition led to the accident and thus her injuries. The corporations both moved to have the claims against them dismissed, arguing that the courts of Florida could not exercise jurisdiction over them. The trial court, however, denied both motions, stating that the corporations had “continuous contact that took place over years with various entities sufficient to permit jurisdiction to lie in the State of Florida.”

Despite the trial court’s certainty on the question of jurisdiction, the Court of Appeal reversed in a unanimous decision. Generally, there are two ways for a plaintiff to show that a court has personal jurisdiction over an out-of-state defendant. First, one can show that the court had specific jurisdiction. For specific jurisdiction to exist, one must first show that the state’s long-arm-statute covers the acts at issue in the suit. If that prong is met, one must then show that there exist sufficient “minimum contacts” between the out-of-state defendant and the state where jurisdiction is sought. For there to be sufficient “minimum contacts,” one must generally demonstrate that the defendant “deliberately [engaged] in significant activities within a State or has created “continuing obligations” between himself and residents of the [state]” such that “he manifestly has availed himself of the privilege of conducting business there.”Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76 (U.S. 1985) (internal quotations marks and citations omitted). Alternatively, one can show that general jurisdiction exists. Since the Florida long-arm-statute provision for general jurisdiction is read coextensively with the constitutional requirement for general jurisdiction, see Caiazzo v. Am. Royal Arts Corp., 73 So.3d 245, 250 (Fla. 4th DCA 2011) (pdf downloadable link), one must just show that the defendant engaged in “continuous, substantial, and systematic” contact with the state.
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August 6, 2014

Workplace Fatalities on the Rise in Broward County

by Frankl Kominsky Injury Lawyers

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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