South Florida Injury Attorneys Blog

Published on: December 18, 2018

Preserving Error in Florida Personal Injury Cases

One of a judge’s primary roles in a Florida personal injury case is to decide which evidence the jury is allowed to consider. It is very common for one or more parties in a lawsuit to present evidence that the other party considers objectionable. This may be because the evidence is claimed to be irrelevant, based on hearsay testimony, unreliable, or otherwise excludable under one of the Florida rules of evidence.

When a party learns of an opposing party’s intention to present evidence, the court may be asked to rule on the admissibility of evidence by the party against whom the evidence is being introduced. In so doing, the court will hear arguments from the parties and ultimately decide whether the evidence should be presented to the jury.

Thus, while the judge in a Florida personal injury case may not have the ultimate discretion to decide whether the defendant was liable for the plaintiff’s injuries, she certainly has an important role to play in the process. Of course, judges are human and can make mistakes. When a party feels as though a judge has made a legal error regarding the admissibility of evidence, that party can file an appeal, assuming the alleged error was properly preserved at trial.

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Published on: December 13, 2018

Florida Court Explains a Plaintiff’s Comparative Negligence Is Irrelevant in Recent Intentional Tort Case

By Cecere Santana, PA

Earlier this month, a state appellate court issued a written opinion in a Florida personal injury case discussing the doctrine of comparative negligence as it pertains to allegations involving an intentional tort. Ultimately, the court concluded that a court is prohibited from reducing a plaintiff’s damages based on their own negligent actions if the defendant was found liable for an intentional tort.

Intentional Torts Versus Claims of Negligence

A tort is a wrong act that may result in civil liability. Most torts are the result of the defendant’s negligence; however, tort claims can also be based on a defendant’s intentional act. For example, the claim of fraudulent concealment is an intentional tort. One thing that Florida personal injury plaintiffs should keep in mind is that insurance contracts generally do not cover intentional torts. Thus, even if a plaintiff is successful in a Florida intentional tort claim, the defendant may not have the ability to fully compensate the plaintiff. In this regard, negligence claims may be preferred.

The Facts of the Case

The court’s discussion of the underlying facts of the case was brief; however, the case dealt with a plaintiff’s claim against a tobacco manufacturer — precisely, the plaintiff’s claim that the defendant manufacturer fraudulently concealed harmful effects of their products. The jury found in favor of the plaintiff, but also determined that the plaintiff was partially responsible for her injuries, as she was the one who decided to smoke.

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Published on: December 5, 2018

Florida Bicyclist Accidents Caused by Distracted Drivers

By Cecere Santana, PA

Unfortunately, Florida has a reputation for having some of the worst drivers in the country. Indeed, according to a recent report, there are almost 15 traffic fatalities per 100,000 people in the state. To give this figure some context, roughly 3,200 people lost their lives as a result of Florida traffic accidents in 2016.

While these figures represent all types of traffic accidents, the victims of fatal Florida bicycle accidents represent a sizable portion of those killed each year. It is estimated that by year’s end there will have been a total of 130 people killed in Florida bicycle accidents this year alone. Many of these fatalities are caused by drivers who are distracted by some other activity or otherwise not paying attention while driving.

Distracted driving is one of the leading causes of Florida traffic accidents, claiming over 200 lives per year. According to a recent report by the Florida Department of Highway Safety and Motor Vehicles, the most common cause of Florida distracted driving accidents was general inattentiveness, followed by other distractions inside the vehicle. Surprisingly, cell phone use and texting were low on the list of causes; however, that may be due to motorists not wanting to admit that they were on the phone at the time of the accident.

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Published on: November 29, 2018

Arbitration in Cases Against Florida Nursing Homes

By Cecere Santana, PA

Over the past few decades, there has been a drastic increase in the number of dual-income households. While this allows for both spouses to have a fulfilling career, it also frequently prevents adult children from caring for their aging parents, which is a full-time job in itself. Thus, along with the increase in dual-income households has come a corresponding increase in the need for nursing homes to care for older Americans.

While most Florida nursing homes are reputable establishments that strive to provide an adequate level of care to all residents, each month there are dozens of reports of Florida nursing home abuse and neglect. In the event of Florida nursing home abuse or neglect, the resident or their loved ones may pursue a claim for compensation against the nursing home.

Nursing home cases have much in common with other Florida personal injury cases in that a plaintiff must establish that the defendant nurse or administrator acted negligently or intentionally to cause their loved one’s injuries. However, Florida nursing home lawsuits often present an issue that does not frequently come up in other personal injury cases: arbitration.

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Published on: November 21, 2018

Florida Court Considers a Case Discussing the Substitution of a Party After the Named Defendant Died

By Cecere Santana, PA

A recent opinion by a Florida appellate court considered whether a case was properly dismissed after the plaintiff substituted the defendant’s estate after the defendant’s death. The plaintiff initially filed a complaint naming a man as the defendant; however, the plaintiff later learned that the man had died. The case deals with how a plaintiff must proceed in the event that they need to substitute a party in a Florida personal injury case.

Under Rule 1.260(a)(1), if a defendant dies and the plaintiff’s claim can continue, the defendant may be substituted for an appropriate party. According to the rule, a motion to substitute must be made within 90 days of the suggestion of death on the record in court. Failure to file a motion to substitute within 90 days will result in a dismissal of the claim against the deceased party.

Here, after the plaintiff learned the defendant had died the plaintiff filed a suggestion of death and a motion to substitute the man’s estate as a party. However, at that time the deceased defendant’s estate had not been officially opened. The attorney appointed to the estate defended the case for over two years. However, the estate later filed a motion to dismiss, arguing that the plaintiff did not adequately substitute the estate as a defendant because the estate had not been opened before the plaintiff filed the motion to substitute. The trial court dismissed the case, and the plaintiff appealed.

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Published on: November 16, 2018

The Importance of Preserving Relevant Evidence in Florida Personal Injury Cases

By Cecere Santana, PA

One of the most critical parts of a Florida personal injury lawsuit is the pre-trial discovery process. During pre-trial discovery, parties can request relevant information from the other side. If the court approves a request for discovery, the court will order that the evidence is passed to the opposing party, regardless of whether that evidence is favorable to the other side or whether the side in possession of the evidence plans to use it at trial.

Although it may seem counterintuitive, preserving all evidence – even unfavorable evidence – is of critical importance in a Florida personal injury lawsuit. Under the Florida Rules of Civil Procedure, parties have an obligation to preserve evidence as soon as litigation is “reasonably anticipated.” Thus, a party’s obligation to preserve evidence may arise before a lawsuit is filed. A party’s failure to preserve relevant evidence is referred to as “spoliation.”

Discovery Sanctions

Under Rule 1.380 of the Florida Rule of Civil Procedure, a court can impose sanctions on a party that was found to have violated a discovery order. Examples of a violation of a discovery order include refusing to answer a question in a deposition or responding with an evasive or incomplete answer. The sanctions a court can impose range in seriousness, but can include the outright dismissal of a claim or default judgment being entered against a party.

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Published on: November 12, 2018

Three Killed in Florida Roadside Accident

By Cecere Santana, PA

Earlier last month, three utility workers were killed in a Florida car accident while they were working along the edge of the road. According to a local news report covering the tragic accident, the three men were working in a roadside ditch while attempting to restore power at the time of the crash.

Evidently, shortly before seven in the evening, a truck was traveling northbound on a state highway while towing a trailer. The truck inexplicably left the roadway and crashed into the three utility workers. After the accident, the driver fled the scene but was later located by police. Based on the circumstances of the crash, police believe that the driver may have been intoxicated at the time. The driver was arrested and charged with DUI manslaughter, leaving the scene of an accident, and felony vehicular homicide, among other offenses.

Florida’s “Move Over” Law

Accidents such as the one discussed above were the impetus for the passage of a series of laws across the country, casually referred to as “Move Over” laws. Indeed, hundreds of roadside workers lose their lives each year in accidents in Florida and nationwide, which became a major concern for lawmakers. While each state has a different move over law, the idea behind each state’s move over law is to protect roadside workers from the dangers presented by passing motorists.

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Published on: October 30, 2018

Florida’s Dog Bite Law – Who’s Responsible?

By Cecere Santana, PA

When it comes to determining liability in dog bite cases, states employ a variety of different approaches. Most commonly, states will either apply a “strict liability” standard or a “negligence” standard. Many states also require a plaintiff to prove that the dog’s owner knew of an animal’s aggressive tendencies.

In Florida dog bite cases, a dog’s owner is held strictly liable for injuries caused by their animal, regardless of the dog’s history or aggression. A recent case illustrates the difference between a strict liability standard and a negligence standard in dog bite cases.

The Case Facts

The defendant’s dog bit the plaintiff as he approached the animal with an extended hand. As it turns out, the dog had bitten several other people, and had drawn blood during two of those incidents. The dog was usually kept confined within the defendant’s backyard, and on the fence outside the defendant’s home there was a sign stating “Beware of Dog.”

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Published on: October 22, 2018

Who is Liable When Injured by Heavy Machinery?

By Cecere Santana, PA

Recently, the state’s supreme court issued a written opinion in a Florida personal injury case discussing an interesting aspect of Florida law that allows for an accident victim to hold the owners of dangerous instrumentalities liable for their injuries under certain circumstances. This application of the vicarious liability doctrine is somewhat unique to Florida and is important for Florida injury victims to understand, as it may provide an additional means of recovery.

Vicarious Liability and Dangerous Instrumentalities

Under Florida law, the owners of dangerous instrumentalities can be held vicariously liable for any injuries that are caused by the instrumentality regardless of another’s fault in bringing about the accident. Courts consider several factors when determining if something is a dangerous instrumentality, including:

whether the instrumentality is a motor vehicle;
whether the instrumentality is used near the public;
whether the dangers presented by the instrumentality are unique; and
how the legislature has chosen to regulate the instrumentality.

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Published on: October 15, 2018

Florida Wrongful Death Cases

By Cecere Santana, PA

Losing a loved one is always exceptionally difficult. However, the pain and frustration associated with a loved one’s passing are magnified when their death was due to a preventable accident. In Florida, those who have lost a loved one in any kind of accident can pursue a claim for compensation against the responsible parties through a Florida wrongful death lawsuit.

Florida’s wrongful death statute is contained in Florida Statute section 768.16, and is known as the “Wrongful Death Act.” The concept behind the Wrongful Death Act is to “shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer.” The statute allows for a personal representative of the deceased to bring a lawsuit against any responsible parties for the benefit of any “survivors.”

The first step in a Florida wrongful death lawsuit is to establish who is a “survivor.” Florida law defines a survivor as spouses, children, and parents of the deceased. In addition, any blood relative or adoptive sibling can be considered a survivor if they are at least partially financially dependent on the deceased for support.

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