Articles Posted in Personal Injury Case Law

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Last month, Florida’s Fifth District Court of Appeals issued a written opinion in a premises liability case brought by a man who tripped and fell on an unsecured cord while rehearsing with a church band. The court had to determine if the plaintiff’s potential knowledge of the hazard – having been playing with the band for several years – resulted in his expressly assuming any risk of injury. Ultimately, the court concluded that under Florida law, the doctrine of express assumption of the risk applies only in certain limited situations, one of which was not present in the plaintiff’s case.

Aux CableThe Facts of the Case

The plaintiff joined the defendant church in 2008. In the next year, he started playing in the church band. For the next two years, there were no issues; however, in 2011, the plaintiff tripped and fell on the bass guitarist’s electrical cord. The plaintiff filed a premises liability lawsuit against the church, claiming that the church was negligent in failing to maintain the premises in a reasonably safe condition.

The church argued that it should not be held liable because the plaintiff knew or should have known about the dangerous condition and assumed the risk of injury by performing on stage for the past two years. The trial court agreed, finding that the plaintiff expressly assumed any risk of injury, and dismissed the case.

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Earlier this month, a Florida appellate court issued a written opinion in a car accident case that was brought by a man who was rear-ended by a truck while he was stopped on the highway. The case required the court to determine if the plaintiff’s potentially inconsistent statements rose to the level of fraud on the court. Ultimately, the court determined that the plaintiff disclosed all of the necessary information; however, the fact that some of the information he provided was contradictory was relevant to his credibility, which should be weighed by a jury.

GavelThe Facts of the Case

The plaintiff was involved in an accident while he was stopped on the highway. The driver of the truck that struck him was later determined to be drunk. About four years later, the plaintiff filed a personal injury lawsuit against the other driver, as well as the driver’s employer.

Two months after the plaintiff filed this case, he was involved in another rear-end collision. This case involves the differences in how the plaintiff described the second accident. When he filed an insurance claim after the second accident, he described it as “hard impact very fast.” He also explained that the rear bumper was heavily damaged. However, the plaintiff’s testimony in this case characterized the accident as a minor one that only involved a “few dollars” worth of damage. In fact, the plaintiff initially did not even disclose the second accident when he was asked whether he was involved in any other accidents.

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Earlier this month, a Florida appellate court issued a written opinion in a premises liability case brought by a woman who tripped on a water valve while walking on a public road. The appeal resulted from a lower court decision finding that the water company did not have a duty to maintain the asphalt area around the valve, which had become separated from the valve, resulting in the valve sticking up above ground level. However, the appellate court reversed the lower court’s decision, holding that the water company may still have a duty to maintain the valve, even if the accident was caused in part by the surrounding asphalt becoming separated from the valve.

Cracked AsphaltThe Facts of the Case

The plaintiff was walking on a public road when she tripped and fell on a water valve cover that was protruding from the street’s surface. As a result of her fall, the plaintiff sustained injuries and filed a personal injury lawsuit against both the water company as well as the city that owned the road. The plaintiff argued that the water company had a duty to keep the valve in safe condition and to prevent it from becoming a hazard to pedestrians, such as herself.

At trial, evidence was presented that showed the valve had separated from the surrounding asphalt, causing the valve to protrude above ground level. After the accident, the water company leveled the asphalt around the valve so that further injuries would not occur.

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The Second District Court of Appeals recently issued a written opinion in a premises liability case, reversing a lower court’s ruling that had dismissed the plaintiff’s lawsuit based on a lack of evidence that the defendant knew or should have known about the hazard that allegedly caused the plaintiff’s fall. Specifically, the appellate court held that the lower court was improper to base its decision on the credibility of the plaintiff’s expert witness.

ElevatorThe Facts of the Case

The plaintiff slipped and fell after he stepped in a puddle of oil that had formed near an elevator on the defendant’s property. The plaintiff explained that he did not see the puddle before he stepped in it, but after he got up, he noticed that it was coming from underneath the door to the elevator service closet.

The plaintiff’s fall was reported, and the defendant called an elevator technician to fix the leak. The technician determined that the leak was due to a faulty seal and that the oil was dripping at the rate of one drip every two seconds. The technician noted that the puddle was approximately four feet by five feet, and about a quarter of an inch deep. The technician did not know how long the puddle had been there; however, the elevator had been serviced three days before, and there was no leak at that time.

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Earlier this month, the District Court of Appeal for Florida’s Second District issued a written opinion in a nursing home negligence case. The issue the court had to decide was whether the arbitration clause that was signed by the deceased resident’s daughter could bind the resident’s estate in a subsequent wrongful death lawsuit against the nursing home. The court held that the agreement could not bind the estate to arbitrate, and it allowed the estate to pursue its claims through the court system.

Attorney's TableThe Facts of the Case

The case arose after a nursing home resident died while in the care of the defendant nursing home. At the time of her death, as well as prior to her admission to the nursing home, the resident was not competent to make her own medical decisions. Thus, the woman’s daughter was helping her get placed into a nursing home facility. As a part of this assistance, the daughter arranged for her mother to stay at the defendant nursing home and signed an arbitration agreement prior to her mother’s admission.

At the time the daughter signed the arbitration agreement, her mother had not assigned a power of attorney to her daughter. In fact, it was undisputed that the daughter was merely acting as a health care proxy for her mother and did not have any control over financial or legal matters involving her mother. However, when the daughter signed the arbitration agreement, she signed on the line designated for a “legal guardian.” The agreement defined a legal guardian as someone “who, under independent legal authority, such as a court order has authority to act on the Resident’s behalf.”

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Earlier this month, the Florida Supreme Court issued an opinion in a medical malpractice case in which the plaintiff claimed that the defendant negligently left a four-inch piece of drainage tube in his body after a surgery. The court ultimately held that the statute stating that a foreign body left inside a patient’s body is prima facie evidence of negligence should apply to the case, even though the plaintiff knew exactly who left the tube in him.

Medical SuppliesThe Facts of the Case

The plaintiff was admitted into the defendant hospital for a colon resection surgery. During the surgery, several feet of drainage tube were inserted into his body to help his body eliminate fluids after the surgery. A few days after the surgery, a nurse came to remove the tubing before the plaintiff was discharged. She pulled the tube out, as is normal practice, and the plaintiff was sent home.

A few months later, the plaintiff noticed pain in the area of where the tubing had been, and it was discovered that there were approximately four inches of tube still in his body. A subsequent surgery was required to remove the tubing. The plaintiff then filed a medical malpractice lawsuit against the hospital where the original surgery and tube-removal took place.

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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, 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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