Wood Floor Slip and Fall Accidents

Posted By on January 11, 2018

According to research by the National Floor Safety Institute, a non-profit safety organization, each year over 8,000,000 Americans need emergency medical treatment and tens of thousands of people die every year from a slip and fall.

People of all ages are vulnerable to injuries from these accidents, such as broken wrists or hips, as well as painful soft tissue injuries. However, children and those over the age of 65 years share a higher risk of getting hurt if they should slip and fall.  Furthermore, according to the Centers for Disease Control and Prevention, falls are the most common cause of traumatic brain injuries (TBIs). 

From this research, there are several basic factors that contribute to most slip and fall accidents, the most common being the repair and maintenance of the floor surface.

Different Types of Wood Flooring

According to EHS Today, the leading US occupational safety and health magazine, the main reason for over half of slip and fall and trip and fall accidents in this country are issues related to the  floor itself (the other major factors include the footwear the victim was wearing at the time of the accident as well as delays in cleaning up spills).

One type of flooring that is popular in Florida, which have specific maintenance requirements to help prevent slip and falls, are wood floors. However, all wood floors are not created equal. They can be made from a variety of materials including pine, oak, cherry, and even bamboo, and each type of flooring comes with its own set of guidelines as to the repair and maintenance of the material.

In addition to those materials, there are also engineered hardwoods, which is a product that has a real wood top layer placed atop several layers of assorted woods that are cross-layered or pressed together and glued.  This construction process creates an extremely hard top surface, much harder than a standard hard wood floor, which can be an important factor in a slip and fall accident. This is especially true when it comes to evaluating the severity of a victim’s injuries.

 


 

Gloss Finished Wood Floors

Glossy wood floors are found throughout South Florida in both residential and commercial properties.

One of the key characteristics of this type of wood floor is its shine, and maintaining that glossy finish means constant polishing, buffing, and waxing.

With all that polish and wax, it is not uncommon for the floor to become slippery. For that reason, any responsible property owner should take extra precaution to protect their visitors and guests by properly maintaining these floors, which includes following the manufacturer’s suggested maintenance procedures.

Does Florida Law Require A Business Owner To Maintain Its Flooring?

Under Florida’s premises liability law, a business owner has a legal duty to make sure that those who walk upon their floors are safe from harm.  For instance, a restaurant owner is responsible for making sure the establishment’s floors are safe for patrons by properly cleaning, in a timely manner, any foreign substances on its floors.  Failing to do so can ultimately lead to the business owner having to compensate a slip and fall victim for damages such as pain and suffering, lost wages and other economic and non-economic damages.

How Do Insurance Companies Define Proper Care and Maintenance?

Most business owners have an insurance policy that covers slip and fall damage claims.  The insurance companies that write these policies understand the proper care and maintenance of wood floors better than most because they spend money to research ways for their policy holders to minimize the risks of one of these events from occurring.

For example, The Hartford Financial Services Group provides the following advice on maintaining and repairing wood floor surfaces:

  1. Everyone with the task of taking care of these floors needs to have proper instruction and training on the special needs of wood floors.
  2. Anyone cleaning or waxing wood floors must follow the manufacturers’ directions relating to the products that should be used to clean and maintain these floors.
  3. Cleaning personnel need to know that specific types of floors require specific types of care. Wood is maintained differently than ceramic or tile or vinyl flooring.

Proper Maintenance Requirements For Wood Floors

The good news is that Florida’s negligence laws requires that business owners familiarize themselves on the specific care and upkeep of wooden floors, in order to keep customers safe from dangerous conditions.

A business owner should know, for example, the standard process for maintaining wood floors is to sand the wood, seal it with the appropriate sealer, and then apply a combination cleaner-dressing that is solvent-resistant.

Also, according to WoodFloors.org the following advice should be followed for proper regular upkeep:

  • Daily sweeping with a soft bristle broom or dusting with a dry microfiber mop.
  • Weekly vacuuming on bare floor setting
  • Monthly cleaning with a professional wood floor cleaning product as recommended by a wood flooring professional for the specific wood in the flooring.

Examples of  Dangerous and Improper Wood Floor Care and Maintenance include:

  • Not 100% stripping old wax before new wax is placed on the flooring
  • Inadequate or incorrect cleaning
  • Oil placed on wood floors not 100% wiped away
  • Floor products applied too often (build up or warping)
  • Waxing with the wrong equipment
  • Too much wax being used on the flooring
  • Improper wax being used for the type of wood
  • Inadequate drying time
  • Waxy residue left on the flooring
  • Slippery soap left on the flooring
  • Spills left on the flooring that are not immediately cleaned up

How Do You Make Wood Floors Safer?

The key for property owners with wood floors is to keep their beauty while making them less vulnerable to falls. For wood floors, that means being aware that waxing and polishing are the two big issues that cause wood floors to be so slippery.

For business owners, the answer to safer floors lies in creating some kind of resistance on the flooring surface, which can be done several ways:

  1. Sanding the floors with a light sandpaper or even steel wool in the most dangerous walking paths.
  2. Create increased traction with a spray-on coating like the one sold by SlipDoctors.
  3. Applying a commercial non-skid product like Schutz’s SlipNoMor.
  4. Cover the floor surface with an invisible anti-slip tape like the safety tape sold by Watco.
  5. Covering the wood floor walkways with mats, rugs and throw carpets. These may have their own fall risks, and it is important to make sure the rugs are backed with anti-skid surfaces.

Read: Hurt in a Fall Because of No Floor Mat?

Have You Been Hurt Falling Down On A Wood Floor?

Sadly, slip and falls on wood floors happen every day and the victims can suffer serious bodily injuries.  Some of these falls can even result in fatal accidents.

Just like with other premises liability claims, there may be more than one defendant who has a legal obligation to a slip and fall victim including landlords, cleaning services, repairmen and maintenance personnel.

A good piece of advice if you or a loved one has been injured in a wood floor slip and fall, is to speak with an experienced personal injury lawyer to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and the type and amount of damages you can recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

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Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.
 
 
 
 
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Negligence Lawsuits in Florida

Posted By on December 28, 2017

Some car accidents and slip and falls in Florida require that a lawsuit be filed in order for the injured party to receive compensation.  That is because the parties either cannot settle the case due to a disagreement over who caused the accident and/or the amount of compensation that should be paid to the victim.  In Florida, both case precedent and Chapter 768 of the Florida Statutes control how these negligence lawsuits will be prosecuted, including what type of claims can be filed and which cannot.

Generally speaking, in negligence cases, an injured party may be awarded monetary damages for a variety of issues such as lost wages, pain and suffering, medical bills, and other economic and noneconomic damages.  Whether or not these damages are compensable will depend on things like the type of negligence involved; the harm that was suffered; and any defenses or protections available to the defendant (e.g., immunities).

See, e.g., Slip and Falls on City Owned Property.

 

Jurors decide on negligence cases by listening to the court’s instructions on the law and apply it to the evidence presented during trial.


 

What is Negligence?

For many years, Florida courts have defined when a victim will be compensated for their injuries, specifically when those injuries are caused by someone’s mistake or failure to use reasonable care.  This is the law of “negligence.”

However, not every mistake or failure to use reasonable care constitutes negligence in Florida.  In order to determine that someone was negligent, one must evaluate facts on a case by case basis against the legal elements needed to prove a cause of action under Florida law.  See, e.g.:

According to Florida case law, each evaluation must consider the individual accident circumstances and compare them to the legal elements of a negligence case. See – Spivey v. Battaglia, 258 So. 2d 815 (Fla. 1972).

Court Defined Negligence

According to long standing case law, negligence is defined as the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances — or doing what a reasonable and prudent person would not have done under the circumstances.  See, De Wald v. Quarnstrom, 60 So. 2d 919 (Fla. 1952).

Another case defined negligence as “… the failure to observe, for the protection of another’s interest, such care and vigilance as the circumstances justly demand and the want of which caused the injury.”  Miriam Mascheck, Inc. v. Mausner, 264 So. 2d 859 (Fla. 3d DCA 1972);

In Tampa Electric Co. v. Bazemore, negligence was further defined as ”… an omission by a responsible person to use that degree of care, diligence, and skill that was his or her legal duty to use to protect another person from injury that, in a natural and continuous sequence, causes unintended damage to the latter.”  Tampa Electric Co. v. Bazemore, 85 Fla. 164, 96 So. 297 (1923).

Types of Negligence

Negligence is a common basis for a large number of civil lawsuits here in Florida.  In fact, most car accident and slip-and-fall lawsuits are based upon Florida’s negligence law.

There are two types of negligence in Florida:

  1. Active negligence involves someone taking action that consists of the violation of his or her legal duty of care; and
  2. Passive negligence involves someone failing to do something or take action that results in a violation of his or her legal duty of care.

In Florida, someone can be held liable under negligence law not only for what they did (active negligence) but for what they failed to do (passive negligence). See: De Wald v. Quarnstrom, 60 So. 2d 919 (Fla. 1952).

What Do You Need To Prove In a Negligence Lawsuit?

Just proving that an accident happened is not enough evidence to support a negligence lawsuit in Florida.  In order for an accident victim to establish a cause of action for negligence, he or she must have admissible evidence of four pieces of information.  These four pieces of information are known as the “elements” of negligence. See – Sorel v. Koonce, 53 So. 3d 1225 (Fla. 1st DCA 2011).

It is the responsibility of the person seeking compensation to gather evidence of the following:

  • the defendant owed a duty, or obligation, recognized by the law, requiring the defendant to conform to a certain standard of conduct, for the protection of others against unreasonable risks;
  • the defendant failed to conform to that duty;
  • a reasonably close causal connection between the nonconforming conduct and the resulting injury to the claimant; and
  • actual harm suffered by the plaintiff.

All four elements must be proven with admissible evidence in order for a victim (plaintiff) to recover his or her damages from the person who caused the accident (defendant).  See Am. Jur. 2d, Negligence § 71.  

To learn more about evidence in a negligence lawsuit, read:

Duty-Breach-Cause-Harm

In settlement negotiations, these elements are commonly referenced by insurance adjusters and attorneys as “Duty-Breach-Cause-Harm” (DBCH).  Duty, Breach, and Cause deal with liability; proving that the defendant is responsible for negligence.  Once that hurdle has been cleared, settlement negotiations focus on how the plaintiff was hurt and how much money the defendant and the insurance company  will pay to cover the victim’s damages (Harm).

Formally, to establish a claim for negligence, the victim must demonstrate: (1) the defendant had a legal duty to conform to a certain standard of conduct; (2) the defendant breached that duty; and (3) the plaintiff sustained damage that was proximately caused by the defendant’s breach.  Beltran v. Rodriguez, 36 So. 3d 725 (Fla. 3d DCA 2010). This does not change the burden of proof placed upon the accident victim.  He or she has to have sufficient DBCH evidence in order to win his case in settlement or trial.

Other Hurdles in the Lawsuit

If an injury claim leads to a negligence lawsuit being filed, the plaintiff will also have to clear some basic lawsuit hurdles like (1) determining the right jurisdiction (does the case lie in state court or federal court); (2) is the case filed in the proper county or state court (venue); and (3) are the proper parties named in the case (residency, etc.).  See, e.g., Car Accidents With Company Cars or Commercial Vehicles

What does not have to be proven?

Many negligence cases are based upon mistakes.  The person who caused the accident may claim they didn’t mean to do the behavior that caused the accident to occur.

Fortunately, intent is not an element, or factor, in a negligence lawsuit.  When there is evidence of intent, that is an “intentional tort.”  Intentional torts include things like assault and battery, and intentional infliction of emotional distress.  Punitive damages are available in cases where intent is an element.  Punitive damages are generally not available in cases based upon mistake or failure to use reasonable care, i.e., negligence. 

Jury Instructions In A Negligence Lawsuit

Should the case not settle before trial and the negligence lawsuit proceeds to the jury, the judge will instruct the jury on the law that applies to negligence cases in Florida.  The Florida Supreme Court approves standard jury instructions that are to be used in all civil actions.  While the lawyers have some say in what instructions are to be given in their “charge conference,” the judge decides what the jury hears.

The judge gives these instructions on the law to the jury- not the lawyers.  These instructions can cover things from the evidence, to how jurors are to act during recess, and how they are to consider the facts and come to a decision. If a juror has questions about these instructions, he writes that question down and the bailiff messengers it to the bench. The judge responds accordingly.

The basic jury instruction on negligence law in Florida (Jury Instruction 401.4):

Negligence is the failure to use reasonable care, which is the care that a reasonably careful person would use under like circumstances. Negligence is doing something that a reasonably careful person would not do under like circumstances or failing to do something that a reasonably careful person would do under like circumstances.

Example of additional jury instructions that are commonly given in negligence cases to juries (from Keeping an Open Mind (Jury Instruction 202.2)):

You must pay close attention to the testimony and other evidence as it comes into the trial. However, you must avoid forming any final opinion or telling anyone else your views on the case until you begin your deliberations. This rule requires you to keep an open mind until you have heard all of the evidence and is designed to prevent you from influencing how your fellow jurors think until they have heard all of the evidence and had an opportunity to form their own opinions.

The time and place for coming to your final opinions and speaking about them with your fellow jurors is during deliberations in the jury room, after all of the evidence has been presented, closing arguments have been made, and I have instructed you on the law.

It is important that you hear all of the facts and that you hear the law and how to apply it before you start deciding anything.

For more, read: Instructions That Help Juries Calculate Compensation For Damages

When Does the Jury Hear Instructions on the Law?

Traditionally (and in federal practice), the jury is only given instructions from the bench immediately before they hear closing arguments and are excused to deliberate.  However, there is a trend right now in Florida courts where some judges are giving instructions on the law to jurors at the beginning of the case, as well as prior to deliberations.  The idea here is that this allows jurors to get their minds thinking about what they are going to be considering at the end of the case.

For these judges, they may have different instructions for the jury at the end of the case than what was provided before the presentation of evidence began.

It is the set of instructions given at the end of the case that the jury must use to decide their verdict.

What Should You Do?

If you or a loved one has been seriously injured in an accident, then you may have a claim for damages against the person who caused the incident. If you have evidence that he or she failed in his legal “duty of care,” this may constitute a viable negligence claim under Florida law.

These accident claims can be complex and may need specific investigation in order to determine whether the elements (duty, breach, cause, harm) can be proven.  For instance, in a car accident you will need to investigate things like speed, weather conditions, road hazards and what other vehicles on the roadway were doing at the time of the accident.

A good piece of advice if you or a loved one are injured as a result of negligence is to speak with an experienced personal injury lawyer to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and knowing how most insurance companies respond to these claims. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

_______________

Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.
 
 
 
 
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What Is a Driver’s Duty of Care When Making a Left Turn?       

Posted By on December 14, 2017

In Florida, we have statutory traffic laws that govern how drivers are to make left turns on all public roadways.  If a driver does not abide by these road rules, then the law dictates that a driver should be issued a ticket, or even fined.

However, driving is also governed by Florida common law, which is created by our judicial system from previous court decisions.

Therefore, any driver making a left turn who crashes into another vehicle may be held liable under Florida common law, or court-created negligence law, as well as statutory motor vehicle laws. Florida’s traffic statutes dovetail with common law to assist a car accident victim in recovering compensation for his or her injuries.

The key for finding liability in these car accidents is to establish that the driver failed to meet his or her “duty of care” to oncoming traffic while making a left turn. 

See: Why Does It Matter If Someone Wasn’t Acting Reasonably At The Time Of A Car Accident?

 

Approacing Intersection on Florida Road A1A

 

Florida Traffic Law for Making Turns at Intersections

When determining a driver’s duty of care when a car accident occurs, one only needs to refer to Florida statutory law.

What Does Florida Statute 316.151 Say About Making Turns?

Interestingly, there are more regulations for left turns than right turns for both drivers of motor vehicles and for bicyclists.  For example, when there is a left-turn crash, there is a specific Florida traffic law that applies to drivers making turns at intersections.

Florida Statute 316.151, titled “Required Position and Method of Turning at Intersections,” states that the driver of a vehicle intending to turn at an intersection shall do as follows:

(a) Right turn.—Both the approach for a right turn and a right turn shall be made as close as practicable to the right-hand curb or edge of the roadway.

(b) Left turn.—The driver of a vehicle intending to turn left at any intersection shall approach the intersection in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle, and, after entering the intersection, the left turn shall be made so as to leave the intersection in a lane lawfully available to traffic moving in such direction upon the roadway being entered. A person riding a bicycle and intending to turn left in accordance with this section is entitled to the full use of the lane from which the turn may legally be made. Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection.

What If There Is A Traffic Light?

Under Florida Statute 316.151, if any governing authority (state, county, or local) installs a traffic control device at an intersection, then the driver must obey that traffic device.  This is true even if that device directs the drivers to take a different course than what is provided in Florida Statute 316.151.

To elaborate, Florida Statutes control how a driver is to turn at an intersection unless a traffic light (or other traffic device, like flashing lights at a construction zone) instructs otherwise. 

What About If You Are Riding A Bicycle On A Florida Street?

Florida statutes also place requirements for anyone riding a bicycle on our roadways when turning left at an intersection.  Bicyclists are instructed by Florida Statute 316.151 to follow the same rules as someone driving a motor vehicle, including following the directive of any traffic device.

However, bicyclists have an option when taking a left turn at a Florida intersection.  They can (1) approach the turn as close as practicable to the right curb or edge of the roadway; (2) cross the intersection keeping as close to the curb as they can; and then (3) before proceeding, make sure they obey any stop sign or traffic signal just like the cars and SUVs have to do.

Note: It is not an excuse that the parties have not read our laws: drivers cannot get a Florida driver’s license without a basic knowledge of their rights and obligations, including yielding the right of way to oncoming traffic.  Furthermore, all drivers must meet minimum standards of care defined by statute.

Common Law and Left Turn Accidents

When there is an accident at a street intersection here in Florida, the driver making the left turn may be held liable for the resulting accident damages if he or she is negligent as defined in the common law.

Here, the left-turn driver must be shown to have (1) failed to meet the ordinary duty of care that a driver must use when operating the motor vehicle and (2) failed to exercise proper care in the left turn itself.

Read: Florida Car Accident Compensation Law

What is “Duty of Care” When Making a Left Turn?

When making the left turn, the driver needs to exercise more than the care used when driving down the street.  A driver is expected to be extra-careful before making that left turn into a traffic lane where cars may be coming from the other direction.

Here, the left-turn driver has a duty to (1) make sure that he or she knows the turn can be made in safety, (2) without danger to normal overtaking or oncoming traffic, and (3) without impeding the flow of traffic in either direction.

If there is a crash, the accident will be analyzed from the perspective of the actions undertaken by the driver immediately before and during the left-hand turn and the crash.  Facts will be gathered, including any photos and witness statements.

Courts will also consider the distance and apparent speed of the approaching vehicle.   Would the driver who is making the left turn, as a person of ordinary prudence, believe the approaching vehicle would reach the intersection at an appreciable interval of time after the motorist entered the intersection?

If a person of ordinary prudence would believe that the two vehicles would reach the intersection at approximately the same time, the turning motorist must wait for the passage of the proceeding vehicle. If the driver does, then the driver violates the duty of care, and is therefore negligent.  Autrey v. Swisher, 155 F.2d 18 (C.C.A. 5th Cir. 1946).

As explained in State v. Y.Q.R., 50 So. 3d 751 (Fla. 2d DCA 2010), the driver who wants to turn left must:

  1. Approach the intersection in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle, and
  2. After entering the intersection, the left turn must be made so as to leave the intersection in a lane lawfully available to traffic moving in such direction upon the roadway being entered.
  3. Whenever practicable, the left turn must be made in that portion of the intersection to the left of the center of the intersection.

If the driver failed to do all of these three things, then he or she will be found to have failed in his or her duty of care in making the left turn.

Last Clear Chance Defense

Under the doctrine of “last clear chance” the left-turn driver may escape liability if the other vehicle in the intersection has the ability to avoid the crash and fails to do so.  If this vehicle could drive into the shoulder, or otherwise maneuver around a collision, then the left-turn driver may assert the common law doctrine and not be held liable for the accident damages.

The Case of the Fishing Buddies on Highway 1

Several years ago, John Faherty and two buddies spent the day fishing in Flamingo, Florida, until about four o’clock that afternoon. After they were done, they got on road to drive home to Miami. It was a pleasant day, the weather was good.

Mr. Faherty was driving north on Highway 1 in the far right-hand lane, driving at about 45 mph.  The intersection of Highway 1 and S.W. 152nd Avenue was approaching.  There was some traffic up ahead, but it was so far away that Mr. Faherty couldn’t tell the make of the vehicle.

This part of the highway had a grassy median that separated the northbound lanes from the southbound lanes.

Meanwhile, Allan Wittenberg was driving south on Highway 1 in the left-hand lane.  He was driving a station wagon and he was hauling a 64 foot trailer behind it.

Mr. Wittenberg turned on his left-turn signal as he approached the S.W. 152nd Avenue intersection.  When he got to the intersection, he stopped.  At a complete stop, he waited for the northbound traffic to pass so he could make his turn.

When the nearest northbound traffic was about 500 feet away, Mr. Wittenberg decided he had time to complete his left turn.  He hit the gas, and started driving across Highway 1.

Mr. Faherty saw Wittenberg begin to move into the intersection from about a half a block away.  Mr. Faherty tried to avoid the crash by slamming on his brakes, rather than swerve into the left-hand lane.

He and his fishing buddies skidded straight ahead and collided with Mr. Wittenberg’s vehicle in the right-hand lane, as the Wittenberg station wagon and the first two-thirds of the trailer had cleared the highway.

Of course, there was an accident claim made by Mr. Faherty which was denied and resulted in a court case.  Settlement negotiations failed and the case went to the jury.

The jury did not find the left-hand turn to be a violation of the driver’s duty of care. So, Mr. Wittenberg was not found liable for negligence damages.

Mr. Faherty appealed the case and lost.  The appeals court said that the jury could have ruled that the plaintiff had the “last clear chance” to avoid the accident.  Faherty v. Wittenberg, 203 So.2d 52 (Fla. 3d DCA 1967).

What Should You Do?

If you have been seriously injured in a motor vehicle accident involving a left-turn at an intersection, then you may have a claim for damages against the driver who was making an unlawful turn.  If the driver turned into the oncoming traffic path, then the driver may have failed in his or her legal duty of care, which constitutes negligence under Florida law.

Left-turn car accident claims can be more complex than other kinds of traffic accident cases.  In fact, some of these accidents may require an accident reconstruction specialist to testify about the conditions at the time of the collision, including speed, weather, road hazards, the position of the vehicles on the roadway, and more.

A good piece of advice if you or a loved one are injured in a left-hand turn car accident is to speak with an experienced car accident lawyer to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and knowing how most insurance companies respond to these car accident claims. Most car accident lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

You May Also Be Interested In:

What does your insurance company have to do once you tell them you were in a car accident?

Why is it so difficult to get a car accident settlement from a car insurance company?

_______________

Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.
 
 
 
 
If you found this information helpful, please share this article and bookmark it for your future reference.

Does Florida Law Presume Who Is Negligent in a Rear-End Car Accident?  

Posted By on November 30, 2017

Most traffic accidents in the United States are rear end collisions.  In fact, Federal research studies warn that 40% of all motor vehicle accidents in this country involve a rear-end collision.

Many of these rear end crashes happen at slow speeds, like in parking lots or school pick-up zones. However, rear-end crashes are also known to happen at very high speeds, when serious or fatal accidents occur on Florida highways or toll roads like Alligator Alley.   When a rear-end collision occurs at high speeds, the chances of there being more than two vehicles involved in the accident increases, creating a domino-effect or “pile up.”

In cases such as these, it can be very difficult to determine who was at fault for the collision.
 

 

Rising Number of Fatal Car Crashes

Unfortunately, when one vehicle is moving at a high speed, or where there is a great disparity in the size and weight of the vehicles (like a big rig rear-ending a small sedan), a rear end accident can be fatal.

Even with today’s new car designs, like crumple zones, we know more and more fatal motor vehicle accidents are happening in this country. See, “Deadly car crashes are on the rise again, hitting a 9-year high ,” written by Nathan Bomey and published by USA Today on October 5, 2017.

These fatalities are leading to growing concerns over the causes of these crashes – and who is to blame for causing these accidents.  Some experts are pointing to speeding and distracted driving.  Others are concerned about drivers and passengers wearing safety belts.

Who Is Legally at Fault?

For an auto accident claim to be adjudicated, either in settlement or in the courtroom, a determination has to be made about fault (usually in terms of percentage fault) and damages (amount and types, like lost wages, pain and suffering, etc.).  For those involved in a rear end collision, it is important to understand that in Florida the rear driver is presumed to be negligent or presumed to be the at fault driver.

This means that unless the rear driver can overcome that legal presumption and prove otherwise, the rear driver in Florida will be held at fault for the crash.  This is called a legal “presumption of negligence.”

1.      Presumption of Negligence

Under Florida law, the “presumption of negligence” is a legal doctrine that has been established by our courts.   See, Jiminez v. Faccone, 98 So. 3d 621 (Fla. 2d DCA 2012); and Seibert v. Riccucci, 84 So. 3d 1086 (Fla. 5th DCA 2012).

Under this doctrine, the judge in any rear-end accident claim will assume the rear driver is at fault unless the rear driver presents evidence supporting a reasonable explanation of why he or she was not negligent.   The legal doctrine of presumed fault allows a plaintiff in a rear-end case to only have the burden of proving there was an accident, and that he or she was hurt or damaged as a result.   It does not place the burden on the plaintiff to show how and why the rear-end collision took place.

This burden is left to the rear driver (the defendant).  Under the presumption of negligence doctrine, if a defendant, the rear driver, wants to rebut the presumption of negligence he or she has the responsibility of (1) providing evidence that contradicts the plaintiff’s version of the accident, or (2) give evidence that excuses what happened by explaining how he or she could not avoid the crash.

If the defendant cannot prove the accident happened in a way which contradicts the plaintiffs version or show how the crash was unavoidable, then he or she cannot overcome or “rebut” the presumption of negligence.  In this situation, the presumption becomes a fact, and the rear driver will be found to be the proximate cause of the accident and at fault for the collision. Meaning, the judge will hold the rear driver liable for the crash and its resulting damages.

Why Does Florida Law Have A Rebuttable Presumption?

The courts have held this is the most efficient way to get to the truth in rear-end accident cases.  The rear end driver is considered to be in a better position to provide evidence and facts on what occurred than the driver up ahead, who may have had no knowledge of any circumstances until the crash occurred.

See: The 5 Most Popular Car Accident Lawsuits That Go to Trial in Florida.

How Much Evidence Does The Rear Driver Have To Show To Rebut The Presumption?

The rear driver does not have to prove every single aspect of the accident, or negate every possible inference that he may have been at fault in the crash.  Under Florida law, the rear driver has to present sufficient admissible evidence to the jury that fairly and reasonably shows that the rear driver was not negligent.

When a rear driver is able to meet the requirements of his or her burden of proof, then the case is brought to the jury and the plaintiff does not get an automatic win in the form of a “directed verdict.” Meaning, both sides get to present their case and have a jury return a verdict.

In Marcellus v. Cronan, 963 So. 2d 364 (Fla. 4th DCA 2007), the court ruled that the presumption of negligence is rebutted, if the rear driver presents “evidence which fairly and reasonably tends to show that the real fact is not as presumed.”

The Case of the Car Parked on the Shoulder

A few years ago, Marilyn Cronan was involved in a rear-end collision with a vehicle in which Yolanda Marcellus was a passenger.  Yolanda sued Marilyn for damages she sustained in the crash.  The case went to trial and the jury verdict went to the defendant, the rear driver, Ms. Cronan.

Yolanda appealed the case.  She argued that the judge should have instructed the jury on the “presumption of negligence” and because the judge declined to do so, the appellate court should reverse the jury verdict.  The appellate court ruled against her.

This was because the rear-driver, Ms. Cronan, had rebutted the presumption.  She presented evidence as the rear-driver defendant that negated any presumption of negligence on her part.  This was admissible evidence which demonstrated the car in which Yolanda was riding had been parked or stopped on the shoulder of the roadway.  It was not in the proper position to move forward in traffic.

So, Ms. Cronan argued, she was not negligent in the accident.  She had driven with reasonable care and the front car was at fault.

The appellate court agreed with Ms. Cronan, the rear driver.  It was within the jury’s purview to agree with Ms. Cronan’s argument and deny any award to Yolanda.  It was proper for the judge to send the case to the jury without the instruction to presume the rear driver was negligent.

The court explained:

If a defendant presents evidence at trial that fairly and reasonably rebuts the presumption of negligence, the issue of the defendant’s negligence must then be presented to the jury for determination without the aid of the presumption.  Marcellus v. Cronan, 963 So. 2d 364 (Fla. 4th DCA 2007).

2.      Why Have The Presumption of Negligence Doctrine?

Over the years, many rear drivers have challenged this legal doctrine, arguing that it is unfair for the courts to assume there is fault and not make the accident victim/plaintiff prove that basic element of a negligent claim.

In Florida, there are four basic elements of any negligence case:  (1) duty; (2) breach; (3) cause; and (4) harm.   See:

The “presumption of negligence” doctrine takes away that third element (cause) when there is a rear-end negligence claim.

Rear-drivers and their defense lawyers argue that this an unfair exception from the requirement of having to prove four elements in order to find someone is negligent under Florida’s personal injury law.

The courts have two basic answers to this argument.

First, as discussed earlier, there is the practical efficiency of the presumption here.  In rear end collisions, all too often the front driver has no awareness or knowledge of what is going on behind him or her.  The rear driver is in a better position to know what happened, and to investigate the event.   See generally, Eppler v. Tarmac America, Inc., 752 So.2d 592, 594 (Fla.2000) (explaining origins of rear-end presumption).

However, there is also a secondary purpose for the “presumption of negligence” doctrine that is given by the Florida courts.  From the perspective of Florida’s judge, the “presumption of negligence” in rear end collisions supports a driver’s duty to operate his or her vehicle in a reasonably safe manner so as to avoid collisions with forward objects.  It’s seen as important to public policy.  

As explained by the Florida Supreme Court in Birge v. Charron, 107 So. 3d 350, 362 n 19 (Fla. 2012),…. drivers on Florida’s roadways owe a duty of reasonable care not only to those driving in front of them, but also to those who are following.…  As a matter of public policy, we want all drivers to obey all traffic laws, not just the prohibition against following too closely.

Presumption of Negligence Is Used at Trial and In Settlement Negotiations

For most people involved in a Florida rear-end collision, the “presumption of negligence” is a legal doctrine that comes into play only if the case becomes a lawsuit and that lawsuit makes it to the jury.  This is a legal doctrine that controls not only the evidence in the courtroom and how it is presented, but also in the instructions given to the jury before they begin deliberations.

However, in any rear end collision claim, understanding this burden of proof can be helpful in successfully negotiating a resolution to the matter.  If there are informal settlement negotiations or a formal mediation, knowing the impact of this legal doctrine is a powerful tool for a plaintiff (it can be leverage for the plaintiff).

(Note: Insurance adjusters and defense lawyers know that the rear driver is presumed to be at fault under Florida’s negligence law, but may not explain this fact to the accident victim, as they have no duty to do so.  Their ethical duties align with their client, the rear driver.)

Read – Are Florida Insurance Adjusters On Your Side?

What Do Front Drivers Need to Know?

Front drivers should know that when they are in a rear-end car accident, they do not have to gather evidence of fault. They have sufficient evidence to prove their case (they have a “prima facie” case just based on the nature of the accident).

They should also know that the rear driver will be working hard to find evidence to rebut the presumption of negligence and show fault lies elsewhere.  It may be with the front driver, like in the case of Yolanda and Marilyn.  Or, there may be evidence of other conditions that shift fault away from the rear driver, like road hazards or weather conditions, a mechanical failure in the rear driver’s vehicle, the lead driver’s sudden stop, the lead driver’s sudden lane change, or the lead driver’s illegal or improper stop.

For more on rear end accidents, including common causes and common injuries that result from these accidents, read our earlier article “Rear-End Collisions in Florida.”

What Should You Do?

If you or a loved one has been involved in a rear end collision, then it is important to be aware of the “presumption of negligence” doctrine. However, keep in mind it is not an absolute guarantee.  Rear drivers can “rebut the presumption” and there are many ways to do so.

Having an experienced Florida car accident lawyer by your side can be invaluable in pursuing your claim.  That is because, you can expect the insurance adjuster will tell you that there insured is not to blame for the accident and give you reasons why and how the presumption of fault can be rebutted.

A good piece of advice if you or a loved one are injured in a rear-end car accident is to speak with an experienced personal injury lawyer to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and knowing how most insurance companies respond to these car accident claims. Most car accident lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

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Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.
 
 
 
 
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Is an Ordinary Glass Door a Dangerous Condition?

Posted By on November 16, 2017

Here in Florida, with all of our wonderful views, glass doors can be found in many homes, apartments, condos, as well as in the majority of commercial businesses.  Stroll along any of our many business areas in South Florida, and you will be hard pressed to find an establishment that isn’t filled with glass windows and doorways to maximize views of the palm trees and the blue Atlantic.

However, from a personal injury standpoint, every property owner with a glass door must understand that there are special legal duties that come with having a door made from this material.

This is true for residential property owners as well as those who own or operate commercial premises.

What is a Dangerous Condition?

Under Florida law, some property conditions are known as dangerous conditions – conditions which are viewed as inherently dangerous by their very nature.

When there is a dangerous condition on a property owner’s premises, it means that there is a condition that might cause someone to get hurt, such as a wet floor that can lead to a slip and fall.  Florida law places a legal duty on the owner or occupier of these premises to warn people of this risk of harm. Additionally, businesses with dangerous conditions must tell customers and clients there is this danger and take reasonable steps to keep them safe.

However, glass doors are not always considered dangerous.  Meaning, there may not be a duty to warn imposed on the property owner(s).

 

Is this sliding glass door inherently dangerous?


 

When is a Glass Door a “Dangerous Condition” under Florida Law?

Glass doors have been popular with architects and builders since the mid-twentieth century.  Over 20 years ago, the Florida Supreme Court established how these popular entrances will be treated under premises liability law.  A test has been created which must be evaluated against the specific circumstances of each glass door accident injury claim.

The Florida Supreme Court explains there are five (5) factors that determine whether or not a glass door is a dangerous condition under the law:

  • the location of the door,
  • the age of the person injured,
  • the light conditions,
  • the opening pattern, and
  • the activity on the premises.

See: Fitzgerald v. Cestari, 569 So. 2d 1258 (Fla. 1990).  These conditions apply to glass doors found in both residential and commercial real estate.

Glass Doors Made With Tempered Glass

Not all glass doors are made the same.  Different kinds of glass can be placed into sliding glass doors, as well as French doors, floor to ceiling windows, and decorative front doors.

In sliding glass doors, something called tempered glass, or “safety glass,” may be used.  Using this type of glass is beneficial, as it is a safer kind of glass in the event of breakage. Tempered glass crumbles into small bits and pieces with enough force.  Ordinary glass doors that are not tempered will break into large, sharp shards.  These are very dangerous.  Large pieces of broken glass can fall from the door upon impact, and while other jagged edged pieces remain in the door frame.

Unfortunately, it is not possible to distinguish between regular glass and safety glass just by looking at the door.

The Case of the Residential Sliding Glass Door

In the Florida Supreme Court case of Fitzgerald, the law regarding glass doors as dangerous conditions was established.  The case began when 7 year old Brandi Fitzgerald was visiting her grandparents.  They lived in a house situated right behind the Cavanaughs, and the neighbors were friends.

On the day of the accident, Brandi was visiting the Cavanaughs’ home.  It had a sliding glass door that opened to the back yard.

That afternoon, Brandi had been playing in the Cavanaugh’s front yard and it was time to go back home to Grandma’s house.  So, Brandi ran through the Cavanaugh’s house on her way back to see Grandma.

Earlier that day, Brandi had been able to run through the back doorway as she liked, because they had the door open.

However, that afternoon someone shut the sliding glass door.  Brandi didn’t know, and she ran through a sliding glass door.

The glass was sharp and vulnerable to breakage with not that much impact because it was not made of safety glass.  Plus, it had no decals or other markings to make it easy to see if the sliding door was closed.

No Decals, No Warning

Brandi’s mother, Terry Fitzgerald, filed a lawsuit for damages to cover the injuries sustained by her daughter.  However, she did not sue the Cavanaughs.  She sued their landlords, the Cestaris.

Brandi’s mother argued the landlord had a duty of care to keep the rental home in a “reasonably safe condition,” which included inspecting the glass door to make sure it was made of safety glass.  She argued that the landlord and property owner also had a duty to put decals on the doors to identify when it was open or shut.

Code Compliance

Sure enough, the local building code did require safety glass in the door, so the door was not code compliant.  The Florida Supreme Court held that the sliding glass door in this house was a dangerous condition because it was not made of safety glass as required by the building code.

The court also found that there was no way to easily figure out what kind of glass was in the sliding glass door, so it was a “latent defect.”  Meaning, it was a hidden defect, and that landlords do not have a duty to hire experts to go through their rental properties looking for latent defects.

Landlord or Tenant: Who Had Control of the Glass Door?

Moreover, the court found that the landlords had no duty to put decals on the sliding glass door.  The Court explained, “An ordinary sliding glass door is not the type of dangerous condition which a landlord is in a better position than the tenant to guard against.”  Meaning, the landlord was not in control of the house; the tenants were.

The Florida Supreme Court found that the tenants knew there was a sliding glass door in the house when they moved in; it was far from a secret.  Therefore, the tenants had the duty to warn of the hidden danger created by the closed glass door.  Fitzgerald.

See Bovis v. 7-Eleven, Inc., 505 So.2d 661 (Fla. 5th DCA 1987), where Florida tenants are held to have a legal duty to warn third parties of dangerous conditions on the residential premises because they are in control of the premises, not the legal owner.

To summarize: in a residence, the people who live there are responsible for making sure that everyone is kept safe from the danger of a sliding glass door injury. Ordinary glass doors are not ‘dangerous conditions’ where the law holds the landlord responsible to guard against harm.    

The Case of the Grocery Store’s Automatic Sliding Glass Door Entrance

What about commercial establishments?  Florida courts have held that store owners are not automatically liable for glass door accidents, either.

In one case, a grocery store, X-Tra Super Food Center, had automatic sliding glass doors for the convenience of its customers.

The doors operate on electric impulses and motion detectors, and make it much easier to push a cart out to a customer’s car after they have purchased their groceries.

In this case, the “electric eye” malfunctioned.  The glass door stopped and became stationary.  As a result, Laks hit the door and was hurt.

According to the court, the glass door was not considered an inherently dangerous condition.  The store owner was not liable for “… freak injuries that were utterly unpredictable in light of common human experience.” Id. at 503.  An accident like this was not foreseeable.

Thus, the court held that store owners are liable for glass door injuries if they can reasonably anticipate “the confluence of events” that allow the glass door accident to occur.  Laks v. X-Tra Super Food Centers, Inc., 654 So. 2d 578 (Fla. Dist. Ct. App. 1995).

For more on grocery store liability, read:

What Should You Do?

The duties placed upon property owners, including business owners, landlords and even home owners, are different when a dangerous condition exists on their premises.  These parties are responsible for making sure their invitees and guests are safe from danger.  However, just because someone was hurt by a glass door does not mean the door will automatically be deemed a dangerous condition.

An accident victim will have to show that the accident was foreseeable or the property owner had actual or constructive knowledge of a risk in order to hold a property owner liable for damages.  In these scenarios, damages can include pain and suffering, lost wages, medical expenses and all other customary economic and non-economic damages associated with a personal injury claim in Florida.

Glass door injury cases need specific investigation including inspection of the accident site and expert analysis of the circumstances (including the glass itself), and a determination of whether or not the sliding glass door constituted a “dangerous condition.”

A good piece of advice if you or a loved one are injured in a sliding glass door accident is to speak with an experienced personal injury lawyer to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and knowing how most insurance companies respond to these claims. Most car accident lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

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Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.
 
 
 
 

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Do Owners Of Private Property Owe A Duty To Motorists On Adjacent Roads?

Posted By on November 2, 2017

All too often, Florida car accidents are caused by the sudden mistake of a single driver. However, negligent drivers rarely admit the accident was their fault and usually blame someone else or some condition that was beyond their control.

In some instances, an at-fault driver’s finger-pointing at a third party may be justified because a third party, like a private property owner, may share the financial responsibility for an car accident victim’s damages. This can happen where a property owner fails to maintain their trees and foliage which can spill over and create a blind spot to drivers on the road.

In these situations, both the third party and the at-fault driver will bear a share, in varying degrees, of responsibility as the proximate cause of the car accident. Meaning, each will have to pay their percentage of a victim’s damages like medical expenses, pain and suffering, lost wages, etc. because it was foreseeable that the condition on their property could cause or contribute to a car accident. How much the driver pays and how much the third party must cover in the damage claims will depend upon each party’s determined level of fault (in a car accident lawsuit, this determination is made by the jury).

The key issues here are causation and foreseeability. Is it foreseeable that the condition (the trees and foliage) on the owner’s property could cause a car accident?
 

Intersection of Washington and Lincoln Streets in Miami Beach, Florida

 

Private Property Owners’ Duty to Drivers

A property owner can be held liable for a traffic accident if their landscaping and foliage creates a blind spot, or otherwise blocks the drivers’ view of the roadway. The argument is based upon the theory that the landscaping in some way interfered with the motorist’s ability to drive safely along the roadway and that it was foreseeable that the condition could cause a traffic accident. In these situations, the law imposes a duty upon a property owner to make sure that their landscaping does not create a dangerous condition for motorists that travel alongside their property.

However, not every piece of foliage or tree can be the proximate cause or the blame for a traffic accident. Thus, each accident scene is different, and each scene must be analyzed independently to determine if an adjacent property owner bears any responsibility or if any duty has been breached.

Read: Can fault in an automobile accident claim be shared between parties?

Foreseeable Risk Analysis

Under the “foreseeable zone of risk analysis” every car accident which occurs near private property should include an investigation of the landscaping that surrounds the scene of the car accident. A plaintiffs’ personal injury attorney will want to know:

  • What kind of trees, shrubs, plants, and greenery surround the area?
  • Did any of the foliage come near to the roadway?
  • If so, did it abut the street or road?
  • Did the foliage extend past the property line or boundary into the right of way?
  • Did the foliage block the view of drivers along the adjacent road?
  • How long has this foliage been like this? Did a tree limb fall within the past few hours, or has a shrub been allowed to grow freely for months?

These questions are useful because they help determine whether or not the foliage or tree branches were the proximate cause of the car accident. Meaning, these questions will essentially answer some key factors such as:

  • Whether or not it was foreseeable that the foliage or trees could cause a condition, like a blind spot, which could lead to a traffic accident;
  • If the failure of the property owner to trim their landscaping the proximate cause of the car accident;
  • Whether or not the property owner breach a duty to the motorists driving by their property.

Duty of Residential Landowners to Adjacent Motorists

As a general rule under Florida law, private property owners are not under a legal duty to motorists on abutting roadways. Home owners can grow and maintain the greenery and foliage on their land as they desire. However, when their trees, shrubs, bushes, and plants extend past the boundary of their lot or acreage, things can change.

For example, the Florida Supreme Court has held that all Florida property owners owe a legal duty to drivers not to have foliage growing past the bounds of their property and into the public right-of-way, to avoid interfering with a motorist’s ability to travel safely on the adjacent roadway. Williams v. Davis, 974 So. 2d 1052 (Fla. 2007).

In that case, Beverly Williams owned a home in Orlando that sat next to the intersection of Sidney Hayes Road and Pine Street. She had plenty of greenery and foliage in her front yard. Sadly, a woman named Twanda Green was on the job, driving a rental car from one rental car lot location to another. She was in a caravan of rental cars, fifth in a row of six vehicles. They were moving west on Pine, where there was a yield sign at the “T” intersection with Sidney Hayes.

As Twanda Green turned left from Pine onto Sidney Hayes, she was hit by a dump truck and later died as a result of the accident.

The Personal Representative of Twanda Green’s estate sued the dump truck driver, among others, as well as residential property owner Beverly Williams. She argued that the home owner was liable for damages because her landscaping had created a blind spot that blocked Ms. Green’s view of the approaching dump truck. In other words, she argued that if the greenery had not been there, or if it had been trimmed back, then Ms. Green would still be alive today.

The court held that Beverly Williams owed Twanda Green a duty of care to maintain the foliage on the property so as not to restrict the visibility of motorists at the intersection. As the Florida Supreme Court explained, home owners must not permit conditions on their land that create a hazard for traffic on adjacent roads. “Because of the great reliance on automobiles, the higher population density in today’s society, and the critical importance of highway safety, all citizens must share the responsibility to assure public safety.”

Read: Contributory Negligence in Florida

Duty of Commercial Landowners to Adjacent Motorists

The same duty for maintaining foliage on private property in Florida applies to commercial property as well as residential property. In fact, business owners have been held responsible for car accidents caused by their foliage and landscaping which have caused “blind spots” on adjacent roadways several years before a duty was applied to residential property owners.

Florida commercial property owners have been liable for traffic accidents caused by their foliage since 2001. In Whitt v. Silverman, 788 So.2d 210 (Fla.2001), a property owner unsuccessfully argued that because the car accident was not on their land, that they could not be liable for the victim’s damages.

Their argument was based upon the “agrarian rule” which says a landowner is never responsible for anything that happens outside his property line, even if his foliage can be a contributing cause of an accident. See, Restatement (Second) of Torts § 363(1) (1965).

The Florida Supreme Court held this rule was unjust. Applying that strict, absolute no-liability rule was not right when considering urban landowners and modern motorists (as well as pedestrians). So the Court chose to use the “foreseeability zone of risk analysis” instead. Whitt, 788 So.2d at 213.

The court held that if the land owner has created a foreseeable zone of risk by the foliage that poses “a general threat of harm” toward (1) the patrons of the business as well as (2) those pedestrians and (3) motorists using the abutting streets and sidewalks, then a landowner can be liable for damages caused by a crash. Whitt, 788 So.2d at 222.

The Case of the Florida Service Station’s Overgrown Landscaping

In Whitt v. Silverman, the accident happened when a Florida woman named Jean Simoneau stopped at an Amoco service station in Miami Beach for a fill-up. As she was leaving the gas station, she was in a serious car accident. Ms. Simoneau collided with two pedestrians, one died from her injuries and the other person was seriously injured.

Afterwards, the pedestrians filed personal injury claims against Ms. Simoneau as well as the owners of the Amoco Service Station. They argued that the gas station had a large “stand of foliage” growing between the station and the property next door. The foliage blocked the view of drivers and impaired the driver’s ability to see the sidewalk. Because of this greenery, Ms. Simoneau couldn’t clearly see the pedestrians and this condition was the proximate cause of the accident. Therefore, Amoco should be held liable for their damages.

Amoco argued it was not liable for the car accident because the accident didn’t occur on its property or premises. The crash happened on the adjacent roadway, not on the gas station lot.

The Florida Supreme Court considered how things had changed in society since that rule of no liability had been created. Looking to other courts, the court held that Amoco was relying on old law but that “modern conditions” and “prevailing negligence law” would not allow Amoco to escape liability for conditions on its property that were partly to blame, or the proximate cause, of car accident.

Legally, the service station owner had a duty of care to the pedestrians. When they were injured on the adjacent roadway it was due, in part, to Amoco’s foliage obscuring the at-fault driver’s view. Amoco could reasonably foresee that risk. From the court:

“…the landowners’ conduct here created a foreseeable zone of risk posing a general threat of harm toward the patrons of the business as well as those pedestrians and motorists using the abutting streets and sidewalks that would reasonably be affected by the traffic flow of the business. Notwithstanding this conclusion, of course, cases like this must be subjected to a factual determination of whether the landowners actually breached their duty under the particular circumstances and whether the accidental death or injury was a proximate result of any breach of that duty. In other words, although we conclude that the landowners had a duty of care, a discrete factual analysis and determination is required to determine the landowners’ alleged responsibility in each case.”

Gas stations have lots of traffic moving on and off of their commercial property. Since Amoco had exclusive control over its landscaping on its property, it was not asking too much of Amoco to keep the foliage maintained so it allowed safe egress and ingress of motor vehicles into the service station. Amoco had a duty, which it likely breached, to protect those on or off the property that could be reasonably harmed by conditions on their property.

Florida Injury Lawyer Can Help With Florida Car Accident Claims against Third Parties

Investigating each auto accident site and determining if there are others beside the driver who share responsibility for the victim’s damage is important. No two accidents are the same.

An experienced Florida auto accident attorney who has spent much of his career dealing with car accident insurance adjusters and negotiating car accident claims understands each victim’s accident is unique and causation and foreseeability must be must be properly argued and proven to the trier of fact.

Was there something on the adjacent land that contributed to the accident? Was there a blind spot caused by shrubs, branches, or bushes? Were the branches the proximate cause of the accident? Was the car accident foreseeable?

A good piece of advice if you or a loved one are hurt or killed in a car accident is to speak with an experienced personal injury lawyer to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and knowing how most car insurance companies respond to these claims. Most car accident lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

Also see:

 

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Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.
 
 
 
 
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Bad Vision Can Lead To A Slip and Fall

Posted By on October 19, 2017

After55.com – 10/17/16

The facts are troubling; 1 in 3 adults over the age of 65 will fall every year in the United States and impaired vision is a common contributing factor to a slip and fall. Although these odds seem scary, there are ways to prevent a slip and fall as you age

Below are some tips and things to be mindful of about taking good care of your vision as you age in order to prevent a slip and fall:

  • Visit your optometrist or ophthalmologist regularly to monitor age-related vision issues.
  • Know the difference in your prescription glasses. Multi-focal reading glasses distort your sense of distance.
  • Poor depth perception, cataracts and glaucoma can cause slips & falls.
  • Be careful with medication- Some prescriptions may cause dizziness and drowsiness that may affect your vision.

Also, sensitivity to certain types of lighting can cause someone to fall. If your eyes are sensitive to bright lights, or have problems with glare, you should take the necessary precautions to avoid running in to these conditions when leaving your house.

Read more


Related:

Banana peel

6 Balance Exercises To Prevent A Slip and Fall

Grocery Store Slip and Falls

A Guide To Slip/Trip and Falls in Florida

Personal Injury Claims After A Major Storm (Hurricane)

Posted By on October 5, 2017

Each year, the National Oceanic and Atmospheric Administration (NOAA) releases its research predictions for Florida and the likelihood we will experience serious storm activity, like tropical storms or hurricanes, during the year.

With those major storms, comes the possibility of personal injury claims caused by dangerous conditions like fallen debris, wet and slippery flooring and walkways and wet and slick road ways.

Hurricane Season Warnings from National Hurricane Center

For instance, NOAA issued an early warning that Florida should expect hurricane activity during the 2017 hurricane season.  Then in August 2017, the National Hurricane Center (a division of NOAA) issued an update with an even more serious concern that this year, places like Miami-Dade County, Broward County, and Palm Beach County are going to be in danger of tropical storm and hurricanes  at a level “worse than predicted” beforehand.

Check Your Insurance

We should all heed these warnings.  Each spring, Floridians (individuals and businesses alike) should check their insurance policies and make sure they have adequate coverage for any catastrophic storm event.  If you are living in Florida, you should ask yourself the following questions:

  • Does my homeowners’ policy include wind damage coverage?
  • Do I have flood insurance?
  • What does my auto insurance policy provide if I am in a hurricane-related car accident or debris damages my vehicle?
  • Does my business have coverage for a casualty on the premises during a storm?

Related:  Real Estate Damage Claims After A Major Storm (Hurricane) in Florida.

 

FEMA: Utility Workers deal with rebooting traffic signals after Hurricane Ivan.

 

Accidents in the Aftermath of a Hurricane

Of course, Floridians know the dangers of hurricane damage and the aftermath of a serious storm event.  Many prepare for a major storm regardless of the seasonal predictions.

What many of us may not realize (and what is notoriously under reported) are the high risks of injury, accident, and fatal death in the days and weeks that follow the storm or hurricane.

Personal injuries from events tied to the aftermath of the hurricane or storm happen in a variety of circumstances.  People are severely injured in these accidents, and some personal injuries may even result in the death of a victim. See, e.g.,  McKinney, Nathan, Chris Houser, and Klaus Meyer-Arendt. “Direct and indirect mortality in Florida during the 2004 hurricane season.” International journal of bio-meteorology 55.4 (2011): 533-546.

Injuries after a Hurricane

The Centers for Disease Control and Prevention (CDC) have compiled a long list of risk factors and dangers that Floridians may face after the hurricane or tropical storm has hit and done its damage.

These risks include injuries from clean-up and repair as well as rescue efforts, tainted water, and even structural damage in the home or apartment.

Car accidents and slip and falls are much more likely to occur in the aftershock of a storm.   There will be broken traffic lights, missing street signs,  and debris on walkways. You may even find that walking surfaces, stairwells, and ramps are in need of repair after a major storm.

According to the CDC, below is a list of injuries with a heightened likelihood of occurring after a hurricane or major storm in Florida:

  • carbon monoxide poisoning from generators, pressure washers, grills, camp stoves, or other gasoline, propane, natural gas, or charcoal-burning devices,
  • cuts and bleeding from chain saws, (see below)
  • bites and scratches (infections) from wild or stray animals,
  • Electric shock from electric tools or appliances while standing in water,
  • Electrocution from underwater live power lines or electrified water ,
  • Car crashes, and
  • Slip and falls.

A tragic example:  while running his chain saw to take care of tree branches in the clean up from 2017’s Hurricane Irma, a Florida man was killed when the saw got caught in the branches and the blades hit his body, severing his carotid artery and causing his death.  See, “Chainsaw accident kills man cleaning up debris after Irma,” reported by Fox News.

Other tragedies in the aftermath of Hurricane Irma include: (1) a fatal car crash caused by the storm; (2) an electrocution from stepping on a live power line; and (3) several family members killed from carbon monoxide poisoning emitting from the gas generator running in their home. See, “Hurricane Irma death toll in Orange County confirmed at 5,” reported by Orlando Rising.

On the Job Accidents

There is particular concern for the risk of personal injury for workers doing cleanup and restoration after the hurricane.  The National Institution for Occupational Safety and Health (NIOSH) warns of accident dangers that include:

  • electrical hazards,
  • Carbon Monoxide,
  • musculoskeletal hazards,
  • heat stress,
  • motor vehicles,
  • hazardous materials,
  • fire,
  • confined spaces, and
  • falls.

Other Dangers After a Hurricane

There are other risks after a hurricane or storm, including: food poisoning, drinking contaminated water, and being exposed to toxic mold or mildew (and other bacteria).

  1. Tainted Food- When the power goes out after a storm, there’s a temptation to eat some of the food that sits in the refrigerator. Perishables left in the fridge can become toxic even though they don’t look bad or emit a bad odor.
  2. Toxic Mold- In our humidity, mold grows very fast and can erupt within hours or days after a serious storm has hit.  Mold can cause respiratory illnesses in many and can be particularly dangerous for the young, the elderly, and those with compromised immune systems. Everyone should know their rights about mold exposure, including residential tenants.
  3. Contaminated Water- People can die from drinking water or having their skin come into contact with adulterated water after a storm. This includes water that has accumulated outdoors as well as water coming out of the tap after a hurricane.  Drinking water can be unsafe and harm anyone who drinks it.  Standing water can grow toxic bacteria that can kill humans.

For example, after Hurricane Harvey in Texas, a former paramedic and first-responder had been working in the flood waters.  He quickly realized that he had been exposed to bacteria that had caused “necrotizing fasciitis” which kills soft tissue and can cause death.  See, “Hurricane Harvey responder contracts deadly bacteria in floodwaters,” reported by FireRescue1.

Lawsuits and Personal Injury Claims after a Hurricane

According to the Washington Post, more people die from accidents and injuries sustained after the hurricane than during the storm itself.  Its study of the ten deadliest hurricanes of the 21st century (2000 – 2017) found that the storms present different dangers.  For instance, the tremendous flooding after Harvey and Katrina posed different risks than the high winds of Irma.

However, its research shows that most “indirect deaths” are caused by electrocution; carbon monoxide poisoning; dealing with trees and clean up; car accidents (because of failed traffic signals, etc.); open flames (20); and falls due to ladders, roofs, or unlit stairwells.

For victims of hurricane accident injuries, it is important to investigate your case and determine if your injuries occurred as a result of a breach of a legal duty that was owed to you.

The mere fact that a hurricane has hit the Florida coast does not erase or negate the legal duty imposed upon businesses, utilities, property owners, product manufacturers, and anyone driving a motor vehicle on the local streets after a storm has passed.

Motor Vehicle Accidents

For example, if you are involved in a car crash in the days or weeks following the hurricane,  then you need to know if the accident was caused in part by a missing street sign or failing traffic signal.  You should ask yourself: did the driver take extra precautions accordingly?  Most drivers know to consider an intersection as a four-way stop if the signal is not working.  What happened in your case?

For more on car accident claims, read: Florida Car Accident Compensation Law

Slip and Falls

Premises owners have a duty to their customers and invitees to keep those visiting their store, gas station, restaurant, hotel, etc., safe from harm.  This includes making sure there is adequate lighting, setting up warning signs for “wet floors”, spreading sand on slippery surfaces, etc.

If you or a loved one slipped and fell on a commercial property in the days or weeks following the hurricane, then you need to know if that owner or business operator breached a legal duty to you that caused your accident and its resulting injuries.

This duty, or breach of duty, is part of Florida’s premises liability law.  Claims can be made for damages that include medical expenses as well as pain and suffering, lost wages, and more.

For more on premises liability slip and fall claims, read: Slip and Falls Claims in Florida

Hotels and Restaurants

Those in the business of providing hospitality to their customers have a legal duty to protect them from any dangers that may result in personal injury.  This means that restaurants must throw away spoiled food and hotels must properly clean showers and tubs, and maintain their pool chlorine levels.

If you or a loved one suffered food poisoning, an allergic reaction to mold or mildew, or were injured by exposure to contaminated water at a hotel or restaurant, then you may have a legal claim against the establishment for your injuries.

Read: Slip and Fall in Your Hotel Bathroom

Injuries on the Job

If you are hurt on the job in the aftermath of a hurricane, then your accident may be covered by the state workers’ compensation system.  You may have a claim to file under your employer’s liability plan.

See: Employer Liability for Distracted Driving

Product Liability

If you or a loved one was injured by a faulty product, then there may be a legal claim to assert against the manufacturer or distributor of that product.  Carbon monoxide poisoning can be caused by generators, pressure washers, grills, camp stoves, as well as any device that runs on fuel like gasoline, propane, or natural gas.  If someone is hurt or killed by exposure to carbon monoxide, then you should ask yourself if the product was working properly or if it malfunctioned and emit the toxic gas.  If there was a failure, then the manufacturer may be liable for the injuries that its product has caused.

Related: Getting Evidence from Third Party Sources: Proving Your Florida Accident Claim.

What Should You Do?

If you or a loved one are hurt or killed in a hurricane-related accident, then you may have a claim for damage against those responsible for your injuries.  The fact that a storm has hit the area does not negate the duties imposed by law on stores, landlords, property owners, product manufacturers, and drivers of motor vehicles.

A good piece of advice if you have been injured after a major storm is to speak with an experienced personal injury lawyer to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and the type and amount of damages you can recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

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Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.
 
 
 
 
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3 Tips For Perfect Tire Maintenance

Posted By on September 28, 2017

US.Coopertire.com

It is a well-known fact that poor car maintenance is among the most common causes of car accidents in South Florida. Personal injury lawsuits are filed every day as a result of negligent drivers. However, for those safe drivers who come to complete stops at stop signs, always use their blinkers, and keep their focus on the road, there may be one detail that they’re overlooking.

It is extremely important that you keep up with tire maintenance. This includes keeping an eye on:

Tire Pressure

It is recommended that you check your tire pressure every day before driving your car. Keeping your tire pressure gauge in your glove compartment is a great way to ensure that you have it with you at all times. If you aren’t sure what your car’s tire pressure should be, you can typically find this information on a sticker placed on the inside of the door. If not, check the owner’s manual or call the manufacturer if needed.

Wear and Tear

The amount of tread wear is not the same on all four tires. As you drive your car, the tires in the front may have more signs of feathering (a wear pattern found on the tire tread) than those in the rear, and vice-versa.

Rotating your tires at your scheduled vehicle maintenance is one of the best ways to prolong the life of the tires and your car. This can help maintain your suspension by reducing vibrations while the car is being driven, reduce noise, and can even increase your gas mileage.

Tire Alignment

Something as small as hitting a curb can damage your tires and throw them out of alignment. Misalignment causes your tires to wear down much faster than it should. As a result, you may be putting yourself and your passengers at risk of getting in a serious car accident. For example, worn down tires have a higher risk of hydroplaning when driving in the rain.

Read More…

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Related Car Accident Articles:

 

Was Your Crash Caused By Flawed Maintenance?

 Bald Tires: A Car Accident Waiting to Happen Rear-End Collisions In Florida

Getting Evidence from Third Party Sources: Proving Your Florida Accident Claim

Posted By on September 21, 2017

Whether you decide to negotiate your accident claim for yourself or to hire a personal injury attorney to help you with your accident case, you will need to gather and organize the documentation needed to prosecute your case.  A well-documented claim is going to get more respect from an insurance adjuster or defense lawyer – and may result in a higher settlement for you.

We’ve discussed how documents and conversations become evidence in past posts.  There is also our free e-book with tips for filing a Florida accident claim without hiring a lawyer.  (Get it over there in the right sidebar.)

Here, we cover some of the practicalities and steps you have to take to get that evidence, so you have it ready either for your settlement conference or meeting with your lawyer.

 

Doctor’s narrations are part of medical records protected by HIPPA.

 

Your Accident File and Chronologies: Organizing Your Claim

You need something to keep everything that concerns your claim. Whether it be for a car accident or a slip and fall in Florida, the paperwork can be surprisingly voluminous.  It is advised that you create a filing system for your accident file with all your claim documentation.

1. Filing System

The exact filing system that you choose to use depends upon your preference.  Using a series of manila folders in a Banker’s Box is one method, with each folder for a different evidence source.  Another method is using an accordion file or paper portfolio.

Whatever you choose, this is the place where you will not only keep (1) evidence of your claim but also (2) information about the source of that evidence (like the name of the person you spoke with about getting that police report, etc.).

2. Chronology Lists

Keeping a list of documents as you receive them is a good idea in order to obtain quick and easy access to the information you need.  This is called a “chronology.”  Often, several chronologies are helpful: one for the medical records and one for the medical bills, for instance.  (See more, below.)

3. Lawyer’s File

If you hire an accident attorney, he or she will investigate and gather documentation (like depositions, interrogatories, photographs, video surveillance, etc.) and evidence as part of his/her preparation for representing you as your advocate.  How much documentation you will gather for the lawyer will depend upon your particular circumstance.

You will still have documentation related to your case even if you have legal representation, and preparing an accident file for your personal accident records is wise, even if you have delegated the job of collecting evidence to your lawyer.

Medical Bills, Medical Records and HIPPA

After an accident, you’ll be getting all kinds of medical bills.  The EMS company may have an invoice out to you within days of the accident!  It’s important that you keep all these medical bills, even if you have several copies from the same health care provider.

It’s also a good idea to keep a chronological list of each medical bill as it comes in, too.  This is a chart that gives the date, the amount, the provider, and the service provided.  You create this for your files and update it as new medical bills arrive.  This tally can be used to help prove up your damages.

Medical Records vs Medical Bills

Each health care provider you were seen by will have records of what services were provided to you and what products were used for or by you as a part of your care and treatment.

Medical records can include ambulance, hospital, surgeon, therapists, your primary care physician and more.  Any document pertaining to your medical treatment is a medical record, and is evidence supporting your accident claim. 

Medical records include lab tests, drug prescriptions, wheelchair or bed rentals, hospital charts, doctors’ narratives, nurses’ notes, and any exams that were done during treatment (MRIs, EKGs, etc.).

These records and bills can be helpful in proving your damages in a car accident or slip and fall. They can be used to show that you experienced pain and suffering, disfigurement, emotional distress, and even support a lost wages claim (more on that below) as a result of the accident.

Read: Economic v. Non-Economic Personal Injury Damages

HIPPA Privacy Requirements

To get the medical records themselves, you will have to request them in a manner that meets the privacy guidelines of HIPPA (the Health Insurance Portability and Accountability Act of 1996).  HIPPA places federal guidelines and requirements for requesting confidential information, and protects the patient’s privacy.  In other words, if the information is considered “protected health information” (PHA) under HIPPA, then it cannot be released until the HIPPA guidelines are met.

Most hospital facilities have record systems in place for requests that meet HIPPA standards.

For instance, the University of Miami Hospital system has an online web page that gives specific information on how to make a medical records request from its administration.  There is also contact information given for its Office of HIPAA Privacy and Security.

The Miami Medical Center also provides online information on how to request medical records in a manner that complies with HIPPA.  This includes an online pdf form that you can download for use in requesting your medical records from the MMC (their “HIPAA-compliant release form”).

Each health care provider must meet the privacy protections of HIPPA, as long as they have “protected health information” pertaining to your care and treatment.

You may need to check with pharmacies, doctors’ offices, chiropractors, therapists, and more on their individual protocols on releasing medical records under HIPPA. Special steps have to be taken pursuant to federal law in order for health care providers to release your “protected health information” to you.

Police Reports

Police reports are a key part of any Florida car accident claim.  They are usually ready for review within a few days of the incident, having been prepared and filed by the officer(s) at the scene of the accident.

Rest assured, law enforcement agencies will be organized and ready for your request.  They usually have employees who are specifically tasked with the job of responding to requests for police reports.

Call the police department or county sheriff’s office that investigated your accident and ask them about their procedure for obtaining a police report.

For instance, the Fort Lauderdale Police Department has an online web page that provides its contact information and how to request your accident report.  Their Records Unit is located at 1300 West Broward Boulevard, Fort Lauderdale, FL 33312, and can be reached at 954-828-5465.

Florida Statutory Requirements: Affidavit for Traffic Accidents

Police reports can be made for all sorts of accidents.  It’s wise to call the police to a serious slip and fall accident, for instance (the EMS call may bring the police as well).

For motor vehicle accidents, you will have to do more for a police report than for other kinds of accidents.

Certain agencies set specific guidelines and requirements for obtaining a crash report for your car accident claim. Pursuant to Florida Statute 316.066, an affidavit is required if you ask for an accident report involving an auto accident or car crash.

The law requires your affidavit if you ask for the report within 60 days after the accident happened (After 60 days, the affidavit is no longer required). The affidavit must give details explaining why you are entitled to that police accident report.

Law enforcement agencies typically have an affidavit form on file for your convenience.  Below are some links to downloadable affidavit forms for three major South Florida police agencies:

You can mail your request to the police with your Florida Statute 316.066 affidavit if you do not want to visit their offices.

Read: Florida Car Accident Compensation Law

Lost Wages and Wage / Salary Verification

A victim’s employer will have to be involved in seeking compensation after they have been hurt.  To prove lost wages, a victim needs third party verification from their employer detailing their wages (if the victim is self-employed, then tax returns may be needed).

A victim must obtain verification of (1) how much money they were making at your job before the accident, as well as (2) any lost wages they have suffered as a result of the accident and (3) any future lost earnings that they will be facing during their recovery from the accident.

The exact documentation will depend upon the victim’s employer.  If the victim is a salaried employee, then pay stubs may be a good starting point.

However, if the victim works on commission, as a real estate agent for example, then past history of commission earnings may be needed to verified by going back a significant period of time.  Here, the real estate brokerage company will need to provide a commissions history going back 2 years.

Note: Although the above information can sometimes be found through pay stubs, it is not the best evidence. An employer should provide supporting documentation on company letterhead.  Also, at the very least, an affidavit from an employer will likely be needed to support any projections of future lost earnings or lost earning capacity.

Documentation from an employer about wages should include the following minimum information:

  • job title or position
  • your rate of pay
  • how many hours you typically work per week, including overtime
  • how many days of work you missed
  • how many days of vacation and sick days you used
  • total amount of wages you lost
  • expected lost future wages based upon doctor’s estimated date for you to be able to return to work.

Read more: Lost Wage Claims In Florida: What You Need To Know

What Should You Do?

After an accident, victims have a lot to face: recovering from their injuries, dealing with financial concerns, coping with anxiety and depression and pain.  Having to coordinate and organize the gathering of supporting documentation for their accident claim can be overwhelming and stressful.

A good piece of advice if you have been injured in a pedestrian accident is to speak with an experienced personal injury lawyer to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and the type and amount of damages you can recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

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Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.
 
 
 
 
If you found this information helpful, please share this article and bookmark it for your future reference.