Articles Posted in Personal Injury

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One of the many roles of judges during a Florida personal injury case is to determine what evidence is admitted at trial as well as which evidence the jury will be permitted to consider during its deliberations. To guide a judge’s decision on these critical issues, lawmakers have enacted the Florida Rules of Evidence.

One of the unique aspects of Florida evidentiary law is the lack of what is known as a dead man’s statute. About half of the states have a dead man’s statute, which prohibits an interested party from testifying about a conversation they had with someone who has since died. The idea behind the rule is that because the deceased person is not present to refute the representations made by the interested party, it is difficult to ensure these statements are false or self-serving.

Instead of a dead man’s statute, Florida lawmakers have included section 90.804(2)(e) to help alleviate some of the concerns the dead man’s statute was meant to address. Under section 90.804(2)(e), written or oral statements that were made by a person who is unavailable due to “death or because of then-existing physical or mental illness or infirmity” can be admitted into evidence. These statements are only admissible, however, if the statement relates to the subject matter of the statement made by an adverse party to the deceased. The phrasing of Florida’s rule is confusing. Simply stated, it allows for the statements of the deceased to come into evidence if an adverse party testifies to conversations with the deceased.

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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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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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All Florida personal injury cases must follow certain procedural rules in order to be properly heard by a court. In most cases, court procedural rules are jurisdictional, meaning that a party’s failure to comply with a rule deprives the court of the jurisdiction – or power – to hear the case. Thus, when certain rules are not followed, Florida courts have little discretion but to dismiss the case.

One of the most troublesome procedural rules in Florida personal injury cases is the statute of limitations. Essentially, a statute of limitations sets the time by which a plaintiff’s claim must be filed. While there are certain exceptions, in Florida, most personal injury cases must be filed within four years of the plaintiff’s injury. For Florida medical malpractice cases, the case must be filed within four years of the alleged act of negligence.

Of course, there are exceptions to these general rules that can extend the amount of time an accident victim has to file their claim. For example, if a plaintiff’s injury is not discovered until a later date, the statute of limitations may be determined to have begun at the time the plaintiff discovered their injury, rather than at the time the injury occurred.

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Earlier this month, a pedestrian bridge on the campus of Florida International University collapsed, killing six and injuring several others. According to a recent news report, students and teachers on campus identified several cracks in the bridge before its collapse. However, no action seems to have been taken amid reports of the cracks.

As students prepared to go back to school four days after the tragic accident, the first lawsuits started to be filed. One man who was riding a bike near the bridge at the time of the collapse recently filed a Florida personal injury claim against the firm that designed the bridge as well as the company in charge of its construction.

The bridge was constructed using a new method of construction called accelerated bridge construction. While a former president of the American Society for Civil Engineers told reporters that accelerated bridge construction does not result in a more dangerous bridge once construction is complete, he did acknowledge that moving the bridge into place can put stress on the bridge, leaving it more vulnerable to collapse until final installation is complete.

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Over the past few years, the popularity of rideshare apps, such as Uber and Lyft, has skyrocketed. Indeed, last year, over 45 million people used a rideshare app at least once to get to their destination. However, drivers who are employed by these companies do not need to meet any special criteria other than having three years of driving experience and a clean driving record. The result is that, in too many cases, inexperienced drivers looking for a quick buck end up causing Florida car accidents while transporting passengers.

The rideshare movement, has raised a number of questions involving who can be held responsible when an accident occurs. The two main rideshare companies, Uber and Lyft, each maintain $1 million insurance policies to cover drivers, riders, and even third parties, such as pedestrians or other motorists. However, that policy is only in effect once a driver has accepted a passenger’s request for a ride.

If an accident occurs while a driver is waiting for a passenger to contact them, or is using their vehicle for personal reasons, the companies’ $1 million insurance policy will not provide coverage. However, there may be other options for accident victims, including filing a claim under their own insurance policy, filing a claim with the driver’s personal policy, or filing a claim with the rideshare company under their liability-only policy. The companies’ liability policies, however, offer only the greatly reduced coverage limits of $50,000 per person and $100,000 per accident.

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When someone is injured due to the reckless, intentional, or negligent conduct of another party, they may be entitled to monetary compensation from the at-fault party through a Florida personal injury case. Depending on the circumstances surrounding the accident, the severity of the accident victim’s injuries, and the defendant’s level of culpability, an accident victim may be entitled to one or more of several types of damages.

Types of Damages in Personal Injury Cases

The most common and straightforward type of damages in a Florida personal injury case is compensatory damages. Compensatory damages are designed to restore the plaintiff back to the situation in which they were prior to being injured. Of course, courts cannot go back in time and make a plaintiff “un-injured,” so instead courts estimate the costs that have been incurred by the plaintiff in the past and estimate the plaintiff’s expenses moving forward. Thus, compensatory damages include award amounts for medical expenses, lost wages, and the pain and suffering endured by the accident victim as a result of the defendant’s conduct.

In some cases, punitive damages may be awarded in a Florida personal injury case. While the purpose of compensatory damages is to make the plaintiff whole again, the purpose of punitive damages is to punish the defendant for especially egregious behavior and to deter others from engaging in similar conduct. Due to their nature, punitive damages can be quite substantial; however, they are only available in limited circumstances.

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The highways of South Florida see a large number of commercial trucks every day. As a result, it isn’t surprising to learn that there are a significant number of truck accidents across the state. Indeed, according to a recent government study, there were nearly 300 fatal Florida truck accidents in 2016 alone. Miami-Dade and Broward Counties see the highest number of fatal Florida traffic accidents each year.

Due to the dangers presented by large trucks, Florida truck drivers are required to obtain a special license prior to operating a large truck. In order to obtain a commercial driver’s license, an aspiring truck driver must pass several written tests, as well as a pre-trip inspection test and a road test. In addition, truck drivers who plan on carrying hazardous materials, school children, or extra-long trailers must obtain additional endorsements.

When it comes to determining whether a truck driver can be held liable for an accident, courts apply the law of negligence. Essentially, to establish that a truck driver is liable for injuries related to an accident, the accident victim must prove that some negligent action taken by the truck driver resulted in the accident victim’s injuries. This is normally broken down into four segments:  duty, breach, causation, and damages.

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The Florida state government wants to encourage people to be active and to enjoy the beautiful Florida weather by rollerblading, skateboarding, mountain biking, or engaging in other recreational activities. However, the government seemed to notice that there were becoming fewer and fewer places to partake in these activities because landowners were prohibiting people from engaging in these recreational activities on their land, due to the liability they may face if someone is injured.

The Florida Legislature’s solution was to pass Florida Statute 316.0085, which provides immunity to certain landowners who open up their property for the public’s use. While there are other recreational use statutes in Florida, this particular statute pertains to rollerblading, skateboarding, mountain biking, and paintballing.

The statute provides broad immunity to government landowners, stating that no government entity or public employee can be held liable for injuries sustained by someone who is rollerblading, skateboarding, mountain biking, or paintballing on government property. At first glance, it would seem that anyone who is injured while engaging in any of those activities would not be able to seek compensation for their injuries; however, that is not necessarily the case.

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A 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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