Articles Posted in Personal Injury Case Law

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In a recent case, a state appellate court issued an opinion in a Florida personal injury case requiring the court to discuss the state’s medical malpractice pre-suit requirement and whether the plaintiff’s case was required to comply with that requirement. Ultimately, the court determined that the defendant failed to establish, as a matter of law, that the plaintiff’s case sounded in medical malpractice, and thus the plaintiff did not need to comply with the pre-suit requirements.hospital

Florida’s Pre-Suit Notice Requirement

Under Florida Statute section 766.106(2)(a), prospective medical malpractice plaintiffs must provide notice to those whom they plan to name as defendants. This notice must contain certain information, such as a list of all known health care providers seen by the plaintiff in the past two years and copies of the plaintiff’s medical records. In addition, the plaintiff must obtain an expert affidavit indicating that the plaintiff’s claims have merit.

The Facts of the Case

The plaintiff in this case was a resident at the defendant psychiatric facility. During his stay, another resident removed a metal handrail from the wall, beating the plaintiff in the head and face with the rail. The plaintiff filed a personal injury lawsuit against the facility, arguing that it breached its duty to provide security and train staff on how to recognize and handle emergency situations.

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Earlier this month, a state appellate court issued a written opinion in a Florida premises liability lawsuit requiring the court to determine if the lower court was correct to grant the defendant hardware store’s motion for summary judgement. The court ultimately concluded that each of the plaintiff’s two theories was sufficiently supported by the evidence such that they should proceed toward trial. Thus, the appellate court reversed the lower court’s decision to dismiss the plaintiff’s case.

Legal News GavelThe Facts of the Case

The plaintiff was shopping at the defendant hardware store when an object fell from a shelf behind him and struck him behind the knee. The plaintiff later filed a two-count personal injury lawsuit against the store.

The plaintiff testified that he did not see the item before it struck him. However, he could see it out of the corner of his eye as it was falling from the shelf. After the accident, the plaintiff testified that a store employee showed the plaintiff a trailer hitch and told him that it was the object that had struck him. A representative for the hardware store testified that large, heavy items are not stored on the upper shelves; however, the plaintiff claimed to have seen other trailer hitches up on the top shelf immediately after the incident.

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Earlier this month, six people were hospitalized after a car on the Sandblaster rollercoaster in Daytona Beach’s Mardi Gras Fun Center derailed. According to a local news report, the coaster was carrying ten people in three separate cars when the front car derailed and fell off the tracks.

RollercoasterThe front car that derailed fell to the ground, leaving the other two cars dangling over 30 feet in the air. Emergency responders rushed to get the remaining occupants down safely. In all, six people were hospitalized, two with serious injuries.

Another news article interviewed one of the victims who was riding in one of the rear cars, who opened up about her experience. She explained the sensation of dangling from the coaster as she watched her co-worker fall over 30 feet to the ground below. The woman, a mother of two, told reporters that she was in an extreme amount of pain and thought that she was going to die. She suffered nine broken ribs and spinal injuries as a result of the derailment.

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In Florida, lawmakers have determined that lawsuits bringing claims of medical malpractice must comply with additional requirements that are not necessary in Florida personal injury cases bringing claims under a traditional theory of negligence. In so doing, lawmakers put courts in the position of determining which cases should be classified as “medical malpractice cases” and thus be subject to the additional requirements.

Legal News GavelA recent decision issued by the Florida Supreme Court provides some much-needed guidance for how courts should sort out personal injury cases that lie on the line between traditional negligence and medical malpractice.

The Facts of the Case

The plaintiff was the aunt of a student at a school for the deaf. The student was seriously injured when she was placed in a hold by staff and taken to the ground after staff determined that she was being non-compliant. As a result of her injuries, the student’s left leg was amputated below the knee.

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Earlier this month, a state appellate court issued a written opinion in a Florida dog bite case discussing the single defense to the state’s strict liability dog-bite statute. Ultimately, the court concluded that a warning sign posted outside the dog park where the plaintiff was injured did not bar her recovery against the defendant dog owner.

Legal News GavelThe Facts of the Case

The plaintiff had volunteered at a local dog park for three years. Prior to beginning as a volunteer, the plaintiff signed a waiver indicating that she was aware of the dangers involved in being in the dog park and that she accepted those risks. On the entrance gate into the dog park, there was a sign warning visitors of the potential dangers and explaining that all visitors enter at their own risk.

One day, the plaintiff was inside the dog park with the defendant and the defendant’s dog. The defendant’s dog was running around the park when it collided with the plaintiff, causing her to fall and break her leg. The plaintiff filed a personal injury lawsuit against the defendant, arguing that under the state’s strict liability dog-bite statute, the defendant was liable for her injuries.

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For many, when anxieties run high, physical symptoms can set in. Commonly, symptoms of heightened anxiety are sweaty palms, heart palpitations, dizziness, or nausea. However, when a triggering event is serious enough – like witnessing a fatal Florida car accident – the symptoms can get much worse.

Legal News GavelRecognizing this reality, Florida courts have determined that those who suffer physical symptoms as a result of witnessing a psychologically traumatic event may be able to recover for their injuries – both physical and emotional. This claim is called negligent infliction of emotional distress, or NIED.

Interestingly, NIED is not mentioned anywhere in the Florida Statutes. Instead, this cause of action was developed entirely through the court system. Essentially, courts were getting cases in which those who witnessed serious accidents involving a loved one were attempting to recover for the injuries they sustained from the person who caused the accident. Since there was no statute guiding the courts on how to handle these matters, the courts had to decide for themselves what the elements were to substantiate such a claim.

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Earlier this month, an appellate court issued a written opinion in a Florida personal injury case that was brought by a woman who suffered worsening symptoms of a pre-existing condition after she received a chemical peel procedure from the defendant spa. The case required the court to determine if the lower court was proper in excluding a defense expert witness and entering judgment in favor of the plaintiff. Ultimately, the court concluded that the lower court was within its discretion and affirmed the verdict below.

Legal News GavelThe Facts of the Case

The plaintiff arranged to have the defendant spa perform a chemical peel on her face. The plaintiff, who suffered from rosacea, filled out an intake form indicating that she had rosacea. However, the aesthetician failed to read the form before she conducted the peel.

The aesthetician later testified that, had she been aware the plaintiff suffered from rosacea, she would not have performed the peel. The aesthetician admitted that not reading the form was negligent, but she claimed that the plaintiff was also negligent. As it turns out, the plaintiff had not been to see a doctor for her rosacea for two years, and she had stopped taking all prescribed medication for her condition.

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If a Florida wrongful death case goes to trial, one party ends up with an unfavorable result. In that case, the losing party may appeal the decision. But if an appeal is made, the party has to have a clear understanding of the issues it can raise—because if it failed to raise the issue before, the issue may be waived, and the party may be stuck with the result.

Legal News GavelIn a recent case, a Florida appeals court considered whether an issue could be raised on appeal that the defendants raised before—but not during—the trial. In that case, a man brought a wrongful death claim against two cigarette companies after his wife’s death. The case went to trial, and the jury found in the man’s favor, awarding him $460,000 against each defendant. The defendants appealed the decision, arguing in part that there was improper expert testimony.

The expert testified about the defendant’s use of ammonia in an attempt to increase the addictiveness of cigarettes. The trial court had allowed the expert, a historian, to testify about the history of the defendants’ efforts to increase the addictiveness of cigarettes. The court did not allow the expert to give an opinion on the chemistry of tobacco. However, on appeal, the defendants argued that the expert’s testimony went beyond a historical opinion by testifying that adding ammonia to cigarettes increases their addictiveness.

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In most Florida personal injury cases that are tried to a jury, once both parties have concluded their presentation of the evidence, and the jury returns a verdict, that verdict is final. However, Florida lawmakers recognize that jurors can make mistakes, and thus they have provided a mechanism for parties to petition the court in these situations.

Legal News GavelRemittur and Additur

Under Florida Statutes section 768.74, after a jury determines that liability exists and returns a verdict, a party can ask the court to “review the amount of such award to determine if such amount is excessive or inadequate in light of the facts and circumstances which were presented to the [jury].”

If the judge determines that the amount awarded by the jury was inadequate, he or she can order an additur, which increases the amount of the jury’s verdict. Similarly, if the judge finds that the jury’s verdict was excessive, he or she can order a remittur, which reduces the jury’s verdict. If the party asking for review does not agree with the new figure, the judge will then order a new trial on the issue of damages only.

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Earlier this month, a court issued a written opinion in a Florida golf cart accident case requiring the court to determine if the plaintiff’s insurance provider was required to cover the accident under the underinsured motorist (UM) provision of the plaintiff’s policy. Ultimately, the court held that the exclusion for accidents involving “non-owned golf carts” was invalid.

Legal News GavelThe Facts of the Case

The plaintiff was walking on a pathway in Sun City Center when she was struck by a golf cart. As a result of the collision, the plaintiff suffered serious injuries. The operator of the golf cart did not have sufficient insurance coverage to fully compensate the plaintiff for her injuries, so she filed a claim with her own insurance company, under the underinsured motorist provision.

The plaintiff’s insurance policy contained separate language for accidents involving liability insurance and accidents involving UM insurance. Specifically, the plaintiff’s liability policy covered accidents involving “non-owned golf carts,” but accidents involving “non-owned golf carts” were specifically excluded from the UM protection policy. Thus, the insurance company denied the plaintiff coverage.

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