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Earlier this month, the District Court of Appeal of Florida’s Second District issued a written opinion in a nursing home negligence case, invalidating an arbitration agreement signed by one of the resident’s sons. As a result of the court’s decision, the estate of the deceased resident will not be required to argue their claim in front of an arbitration panel, and may file a personal injury case in the Florida court system.

ContractThe Facts of the Case

The nursing home resident was admitted into a nursing home in 2013. Before admission, her son, who had valid power of attorney for his mother, signed the nursing home contract. Included in the contract was an arbitration clause by which the parties agreed any claims arising from the resident’s admission would be settled through arbitration rather than the court system.

Later, the nursing home was acquired by another company. The nursing home claimed that a subsequent agreement was made to replace the old nursing home’s name with the new nursing home’s name. However, this was never admitted into evidence. At some point the resident was injured while in the care of the new nursing home and her estate later filed a personal injury claim against the nursing home.

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Mike-200x300A Miami-Dade jury awarded this week a $9.3 million verdict to a 24 year-old man involved in a motorcycle accident that resulted in a skull fracture and traumatic brain injury.

On the morning of March 16, 2014 Dylan Machado, who was represented by attorney Michael Cecere from Cecere Santana, PA, was traveling on his motorcycle near SW 67 Ave and 32 Terrace in Miami, when the defendant, Maria Rodriguez, changed into his lane, crashing into his motorcycle. The force of the impact caused Mr. Machado to fly off his motorcycle onto the pavement. Mr. Machado’s injuries resulted in him spending more than two months in the hospital and several months of rehabilitation.

During the one week trial, the attorney representing the defendant argued that Mr. Machado was negligent for not seeing Ms. Rodriguez and was negligent for not wearing his helmet. Mr. Cecere, along with attorney Henry Seiden, argued that Mr. Machado was indeed wearing his helmet and he did not contribute to the accident. In addition, Mr. Cecere contended, the defendant’s negligence had caused Mr. Machado’s severe and irreversible injuries that resulted in a lifetime of challenges and limitations for him.  The Miami-Dade jury only attributed 12% fault to Mr. Machado resulting in the multimillion dollar verdict.

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Earlier this month, a Florida appellate court issued a written opinion in a slip-and-fall case, reversing the lower court’s decision to grant the defendant’s motion for summary judgment. The case required the court determine if a plaintiff can still recover for injuries under a premises liability theory where the hazard that caused the plaintiff’s fall was “obvious.” The court determined that in such cases, summary judgment in favor of the defense is not appropriate.

ATM The Facts of the Case

The plaintiff was a customer of the defendant bank who visited the bank to make a deposit through the drive-thru window. When she arrived, the bank was closed, so she decided to make the deposit at the bank’s outdoor ATM. However, the area around the ATM was under construction. The plaintiff testified that there was a sign in front of the ATM with an arrow to go around the barricade. However, when she walked around the barricade she stepped into a “pot hole,” falling to the ground. As a result of her fall, the plaintiff fractured her foot and leg, and injured her neck and back.

The plaintiff filed a premises liability lawsuit against the bank, as well as the construction companies that were responsible for completing the work around the ATM. The plaintiff made two claims: first, that the bank was liable under a failure-to-warn theory, and second, that the bank was liable under a failure-to-maintain theory.

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There are thousands of cases filed in Florida courts each month. In fact, so many cases are filed in Florida that the system would get bogged down if each case resulted in a jury trial. To help whittle down the number of cases that ultimately go to trial, Florida courts have enacted a series of procedural rules to ensure that only the most diligent plaintiffs and most meritorious cases are allowed to proceed to trial.

Law BookDepending on the type of case and the named defendants, there may be dozens of applicable rules that must be strictly followed. A plaintiff’s failure to follow these rules can result in the court refusing to hear the case until the violation is remedied. In some cases, a court will dismiss a plaintiff’s case outright, preventing the accident victim from obtaining relief. A recent opinion from an Ohio appellate court illustrates how an unknowing plaintiff can end up violating court rules despite the best of intentions.

Davis v. Blaylock:  The Facts

Davis’ father passed away while at a local medical center. At the time of his death, Davis’ father was being treated by several doctors. Davis believed that her father’s death was caused by the negligence of the doctors who were caring for him. In hopes of seeking compensation for her loss, she filed a series of wrongful death lawsuits.

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Earlier this month, a West Virginia appellate court issued a written opinion in a slip-and-fall case that occurred at a hospital. The issue the court had to decide was whether the plaintiff’s case was properly considered a medical malpractice case under state law, or whether it was a premises liability case. The significance of the distinction between the two types of cases is that medical malpractice cases are subject to additional procedural requirements.

Doctor's OfficeThe Facts of the Case

The plaintiff accompanied her husband to the defendant hospital for a medical check-up. The plaintiff’s husband checked in and was escorted to an examination room by a medical assistant. The medical assistant instructed the plaintiff’s husband to have a seat on the examination table and then left the room.

As the plaintiff’s husband attempted to climb onto the examination table, he fell back onto the plaintiff. Both the plaintiff and her husband sustained serious injuries, and the plaintiff’s husband died 90 days after the incident. The plaintiff filed a premises liability lawsuit against the hospital.

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Earlier this month, an appellate court in Georgia issued a written opinion in a negligence case brought by a man who was seriously injured when his apartment caught fire after a gas explosion. In the man’s case against the gas company, the court determined that while the gas company may have been negligent in failing to lock the meter after it detected a leak, the plaintiff’s own actions were deemed an intervening cause that severed the initial chain of causation. Thus, the court affirmed the lower court’s decision to grant the summary judgment in favor of the defendant.

Gas MeterThe Facts of the Case

The plaintiff was moving into a new apartment. Before he moved in, the owner of the apartment arranged for the gas to be turned on. A technician from the gas company came to the property, turned on the gas, and noticed that the meter indicated there was a leak somewhere in the home’s gas system.

The technician filled out a warning card and left it with the girlfriend of the plaintiff’s son-in-law, who was the only one present at the time. The warning indicated that the gas meter was left in the off position because there was a leak that needed to be fixed. The card also explained that the system was left unlocked, so once the leak was fixed, a plumber could turn the system on. This was in direct violation of the gas company’s policy to always leave the meter off and locked when there was a gas leak detected.

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Earlier this month, an appellate court in Georgia issued a decision in a tragic case stemming from the death of a seventh-grade student that occurred at school while his teacher was out of the room. In the case, the court had the opportunity to discuss when government immunity is appropriate in situations in which a government employee’s negligence is alleged. In this case, unfortunately for the plaintiffs, the court determined that the allegedly negligent teacher was entitled to immunity.

After SchoolThe Facts of the Case

The plaintiffs were the parents of a seventh-grade student in the defendant’s American Literature class. One day, the teacher stepped out of the room and asked another teacher to listen in on the class while she was gone. However, while the student’s teacher was absent, he and another boy were horse playing when he fell to the ground, fracturing his collarbone. The fracture caused serious blood loss. By the time the teacher returned and called 911, it was too late. The student died later that day in the hospital.

The principal called the teacher to his office to discuss the student’s death. The teacher initially lied to the principal, telling him that she was present when the student fell. It was only later that the principal determined this was not the case. The teacher continued to offer several other versions of what happened, eventually testifying that she was using the restroom at the time of the accident.

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Last month, an appellate court in New York issued a written opinion in a case brought by the surviving spouse of a motorist who was killed while attempting to assist an escaped farm animal that had wandered onto the highway. In the case, Hain v. Jamison, the court determined that a sufficient link existed between the defendant farm owner’s negligence and the motorist’s death to fulfill the causation requirement. As a result, the plaintiff’s wrongful death lawsuit will be permitted to proceed toward settlement negotiations or trial.

CowThe Facts of the Case

The plaintiff in the case is the surviving husband of a woman who was killed by a passing motorist as she tried to assist an escaped calf that belonged to the defendant. Evidently, the plaintiff’s late wife was driving on a road near the defendant’s farm late one evening when she saw a calf in the middle of the road. She safely pulled over, exited the vehicle, and entered the roadway to assist the calf. Sadly, as she was assisting the calf, another motorist fatally struck her.

The plaintiff filed a lawsuit against the farm owner as well as the motorist. The farm owner explained that the calf had been born earlier that day, and he had not known of its escape until moments before the fatal accident. However, as soon as he became aware of the missing calf, he immediately left the house in search of the escaped animal. Sadly, he was unable to locate the animal before the accident.

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Most people are familiar with the term “statute of limitations,” which refers to the amount of time that an accident victim has to file a lawsuit. Cases filed after the statute of limitations has expired will not be heard by a court, barring some extraordinary exception. In some cases, when a government or public entity is named as a defendant, an accident victim must also provide notice of the lawsuit to the state.

CrosswalkIn Florida, victims seeking financial recovery from a government entity must follow strict guidelines, or their claims will not be heard. Specifically, notice of the claim must be provided to both the entity being sued as well as the Department of Financial Services within three years of the accident’s occurrence. An accident victim’s failure to comply with these requirements can result in the dismissal of an otherwise meritorious claim. A recent case in front of a New York appellate court illustrates how, even if a plaintiff’s late-filed case is ultimately allowed to proceed, it can still result in lengthy delays and unnecessary expenses.

Newcomb v. Middle Country School District

Newcomb, a 16-year-old boy, was struck by a hit-and-run driver while crossing the street near his school. Within a few days of the accident, Newcomb’s parents provided the school with the details of the accident. Shortly after the accident, police arrested the driver and began proceedings to criminally prosecute him.

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Earlier this month, a Delaware appellate court issued a written opinion affirming a jury’s decision to award a personal injury plaintiff a zero-dollar award despite determining that the defendant caused the accident that the plaintiff claimed caused her injuries. In the case, Rash v. Moczulski, the court determined that the jury’s award was reasonable, given the circumstances and the evidence presented at trial.

Wrecked CarThe Facts

The Rashes were involved in a car accident that they alleged was caused by Moczulski. After a personal injury case was filed, and a jury heard the case, the jury determined that the Rashes “sustained one or more injuries proximately caused by” the Moczulski. However, the jury awarded the Rashes zero dollars for their injuries. According to the court’s written opinion, the defense presented evidence suggesting the “nature and extent” of the Rashes’ injuries were exaggerated, and the plaintiffs failed to mitigate their damages while the trial was pending.

After the verdict was issued, the plaintiff asked the judge for a new trial, arguing that the jury’s verdict was inadequate. The judge denied the motion, explaining that “the exact nature and extent of the plaintiff’s injury and plaintiff’s failure to mitigate his injuries through treatment made identifying and compensating the injury quite problematic.” However, the judge amended the jury’s award to provide $10,000 to the Rashes. Both the plaintiffs and the defendant appealed.

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