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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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Late last month, a suspected drunk driver hit and killed one Florida teen and injured several others in a hit-and-run accident. According to a local news report, the accident occurred in Polk County, near the intersection of Allegheny Road and Athbasca Drive.

Brandy GlassesEvidently, the motorist was operating a Kia Rio when witnesses say he leaned forward in the driver’s seat, losing control of the vehicle and driving off the road’s right shoulder. A few moments later, several children who had recently exited the bus at their designated bus stop were struck. An investigation after the accident indicated that there was no pre-collision braking, and the children all seemed to be off the road at the time of the collision.

After the car struck the children, the driver apparently regained awareness and proceeded to flee the scene. A witness to the accident followed the driver, who later crashed into another vehicle before coming to a stop. Police arrived on the scene and arrested the driver, whose blood-alcohol content was approximately twice the legal limit. The driver was charged with several offenses, including DUI manslaughter and leaving the scene of an accident resulting in death.

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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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Anika-Guevara-Smaller-215x300Attorney Anika Milian was selected to be part of the Florida Bar Journal/News Editorial Board standing committee of the Florida Bar. She will serve a term of three years beginning on July 1, 2017 and ending on June 30, 2020.

Members of this committee advise and assist the editorial staff to develop current articles of interest and concern to the legal profession, and then select for publication only the most worthy and notable manuscripts.

“I’m honored to be part of this important committee and I look forward to contributing to the great work of this publication,” said Milian.

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In general, a child’s actions are not judged by the same standard as an adult. The liability a minor may face varies from state to state. In fact, some states define liability based on a child’s age. Under Florida law, however, there is not a defined age at which a minor will be judged at a lower standard than an adult.

SUV on HighwayIn Florida, the question is which standard is expected of a child of a similar age, intelligence, experience, and training. Whether a child acted reasonably under the circumstances is normally an issue to be decided by a jury. However, some cases have used a lower standard in cases involving children under 10, although there is no clear line. The nature of the activity may also be a consideration. For example, a minor who engages in an adult activity may be held to a higher standard.

Parental Responsibility

In addition, parents may be held liable in some circumstances for failing to supervise or care for their children to protect them and others. This is also true for others who are supervising minors who are not their children. Parents and other guardians must exercise reasonable care to prevent children from engaging in activities that are likely to cause injuries. Thus, a particularly dangerous activity may require close supervision.

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While there are many causes of Florida car accidents, one of the more common driving errors motorists make is misjudging the time they have to complete a left turn when another vehicle is approaching. Indeed, by some estimates, almost one-third of all traffic accidents involve one of the vehicles making a left turn.

School BusGenerally speaking, the vehicle making the left turn must yield to the motorist traveling straight through the intersection. In the majority of accidents, this rule applies. However, there are situations in which the vehicle traveling through the intersection can lose the right of way. For example, if the driver who is continuing straight through the intersection is traveling at an excessive speed, that driver may no longer be said to have the right of way. In this situation, a driver who attempted to make a left turn in front of another speeding vehicle may not be liable for injuries related to the accident.

Of course, not all accidents are the same, and each requires an in-depth investigation before fault can be determined. Anyone who has been injured in a South Florida car, truck, or bus accident should reach out to an experienced personal injury attorney to discuss their case.

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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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Determining who is at fault in a Florida car accident is not always as straightforward as it may seem. While some accidents involve a clear error on the part of one driver, other accidents present a much more difficult situation. For example, chain-reaction accidents can involve multiple parties, each of whom may be partly at fault for the collision. Determining who is at fault in these accidents and dividing up the fault according to each driver’s actions is a difficult task that is most often left to the courts.

Blurred TrafficFlorida uses the comparative negligence rule when determining which accident victims are permitted to recover compensation for their injuries and how much they should recover. Under the comparative negligence doctrine, each party who is injured in an accident is entitled to file a personal injury lawsuit against the party or parties they believe to be responsible for their injuries. If the jury determines that a plaintiff is partially at fault for their own injuries, that plaintiff’s total award amount will be reduced by their own percentage of fault.

Florida’s comparative negligence method is considered to be much more plaintiff-friendly than the alternative doctrine applied in other states, called contributory negligence. Under a contributory negligence analysis, any person who is determined to be even the slightest bit at fault for an accident cannot recover for their injuries.

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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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