Slip And Fall Depositions      

Posted By on February 22, 2018

Depositions are a part of most slip and fall litigation cases. The answers given by the deposed party can impact a case in a meaningful way. For this reason, it is important for a victim to know the nature of the questions that will be asked of them, under oath, so they can answer them in an informed and honest manner.

Premises Liability Lawsuit: Depositions are Part of the Process

Being hurt in a slip and fall in a local grocery store, restaurant, fast food franchise, or other commercial establishment often means the business establishment failed to do something to protect their customers.  Meaning, the business was negligent and, as a result of their negligence, the victim was injured on their property.

Unfortunately, when an at-fault party does not accept responsibility for their actions, or denies a claim or makes a lowball offer to settle, then a victim may have no alternative but to file a premises liability lawsuit in order to recover the compensation needed to make them whole again.

A key aspect to many slip and fall lawsuits is the testimony given by the victim in their deposition. In all lawsuits, (personal injury or otherwise) depositions are an important part of the discovery process.

 

Witness stand in a courtroom

Depositions take sworn testimony just as if you were on the witness stand.


 

What Should A Plaintiff Expect At Their Deposition?

Over the years, we have heard time after time the general line of questioning asked by defense lawyers for these commercial defendants.  Lawyers for big companies like Publix, Walmart, and other grocery stores, for instance, are well versed in what to ask victims who have fallen down at their client’s property.

Today, we are sharing some of what we’ve seen and heard, so a slip and fall accident victim knows what to expect at his or her deposition.

Deposition Strategies

Even though the victim is the party filing the lawsuit for compensation, the defendant is allowed to take the victim’s deposition.

It is rare for a personal injury plaintiff not to be deposed.  The defense wants to know the victim’s side of the story, and they want to size up the victim:  how good of a witness will the victim be?  Will the jury be impressed with the victim’s demeanor?

The key strategy for the defense here is not whether or not to take the victim’s deposition, but when to take it.

  • Should they take your deposition first and then spend discovery time to find ways to poke holes in your testimony?
  • Or, should they wait till the end of the discovery period and then try and trip you up with all of the information they were able to gather?

Different defense attorneys will have different strategies.  Your attorney, especially one with years of experience dealing with slip and fall litigation, will likely have some guidance here on what you can expect from the defendant’s particular legal counsel.

Will The Deposition Be Used At Trial?

Your deposition is essentially the taking of testimony in an informal setting outside of the courthouse.  It is a question and answer process.  Your lawyer is present, sitting beside you, and he or she can voice objections on the record just as if you were sitting on the witness stand.

The deposition does not replace the victim taking the stand during the trial.  During trial, where a victim testifies in court, all of the victim’s depositions answers can be used against the victim in open court.  Which is why, the best advice we give to client’s is to be honest.

For more on discovery, read: Grocery Store Slip and Fall; How to Prove Your Claim

What Kinds of Questions Will A Slip And Fall Victim Be Asked? (Sample Deposition Questions)

Here are examples of slip and fall deposition questions that you can expect to be asked by the defense lawyer who is representing the owner of the business or property where you slipped and fell.

Consider the following questions carefully, because there are reasons for each of these queries to be asked.

Did you see anything on the floor before you had slipped?

If you saw debris or spills on the floor before you fell, then that fact may bolster their argument that you were at fault in the accident.

Was there anything impeding your vision of looking at the floor?

If you say you couldn’t see the walking path, then they will ask you why not. Was this further negligence by the defendant, or did a third party contribute to the accident?  Was a display set up by an outside vendor blocking your view?  Were you carrying something that blocked your view?

Did you see anything on the floor prior to your slip and fall?

Same rationale here as question number 1. Notice that the lawyer is free to ask the same question with different wording.

What were you looking at?

If you weren’t paying attention to where you were going, then they may have an argument that you were at fault for falling down in the first place.

Were you looking where you were going?

Same as above.

What did you see?

This is a key question.  The defense wants to narrow down your story and version of events on what happened to cause you to fall down.

What clothes were you wearing on the day of the slip and fall?

Sometimes, clothing can hamper your ability to move and walk and this can be used in a argument that you were at fault for the fall.

What shoes were you wearing at the time of the slip and fall?

Same as above.  For details here, watch our video: How do the shoes I am wearing affect a slip and fall?

Do you take medication and, if so, for what ailment?

Many different drugs and medications can hamper your perception and motor skills.  Even over the counter remedies for colds, coughs, and the flu can contribute to a fall.  The defense will be trying to find out if drugs contributed to your fall.

Did you take the medication the day of the slip and fall?

Same as above.  Here, they are looking for facts on the medications you were taking during the 24 hour time period before the fall.  Some drugs have long-lasting effects, and it is through discovery that the defense can learn of your prescriptions as well as non-prescription medications.

What were the side effects from the medication?

If you answered yes to taking any drugs or medications, they will want to learn about the side effects.  They will also research the drugs themselves for what the drug manufacturer acknowledges as side effects of the drugs.

How big was the object?

If you tripped and fell, they want your story on what caused you to trip, and will ask you to describe it.

Do you know how long the object was on the floor before you slipped and fell?

Same as above.  If you knew the hazard was there, then they may argue you were at fault for not avoiding it.

Do you know how the object got there?

If you know how it got there, then maybe there are others to blame for the accident.

What did Publix or Walmart or other Defendant’s employee do to the condition after the fall?

This is gathering the story of the accident from your perspective immediately after you were hurt.  They want to know if steps were taken to deal with the danger after the event.

Did you or anyone take pictures of the fall?

If you or someone else took photos or videos of the accident scene / event, the defense has a right to get copies.

Did you sign anything?

The defense will want to know if anyone presented paperwork to you at the time of the accident, including the store employees.  If so, the defense will ask for copies of these documents.

Did you fill out an incident report?

The defendant will want to read what your story was in this incident report, to see if it jives with your pleadings and your testimony.  Things that don’t jive help the defense argue against your right to damages in full, or in total.

Did the employee or store manager say anything about the condition that caused the slip and fall?

The defense will want to know if there were any statements made at the time of the accident where their agents or representatives gave “admissions against interest” – in other words, said things that admitted the defendant is to blame for what happened.

When was the first time you realized the substance which caused you to fall?

The defense wants to know your side of the story on what happened, and they want to try and build an argument that you are to blame if you knew of the hazard and failed to avoid it.

Did you notice any marks or liquids on your clothes after the slip and fall?

After a fall, your clothing may contain clues as to how the accident happened and was caused.  For instance, if you slipped due to a bottle of spilled olive oil in the grocery store aisle, then your clothing will likely have olive oil from where you fell.

Were there any employees visible at the time of the fall?

This question goes to liability; if there were clerks or employees nearby then why hadn’t they fixed the danger or warned you about the risk?

Who came and attended to you?

This is more gathering of information from your point of view.  The defense lawyer needs to know which of his client’s employees were there to help you, and what they did – from your perspective.

Did any employee say anything? If so, did you get their name?

The defense attorney will want to know if you have identified clerks, employees, and agents of his client and what they may have said to you about the accident, among other things.

What Else Does The Defendant Learn At A Slip and Fall Deposition?

In a slip and fall case, the deposition of the accident victim is one of the major parts of the lawsuit. In some instances, the defense may make an acceptable settlement offer shortly after a plaintiff’s slip and fall deposition if things go badly for the defendant.

For all slip and fall accident victims, it is important to understand that their deposition is the first chance for the defendant’s lawyer to meet them and evaluate the plaintiff for issues like credibility and if the victim presents well (is the victim likeable and sympathetic?)

Slip and fall victims tell their side of things as they answer the defense questions over the course of the deposition. This may take several hours, even an entire day.

However, at the end of the Plaintiff’s slip and fall deposition, the defense attorney will not only have a much better idea of the facts of the accident, but also of the accident victim and their personal presence.

How Does A Personal Injury Lawyer Help?

Florida law does not require an accident victim to hire a personal injury attorney to represent the victim in their claim against the store or business establishment that caused the victim’s accident.  A victim can represent himself or herself, even at the deposition.

However, most accident victims and their families find that the accident aftermath is overwhelming enough without having to deal with defense lawyers and insurance adjusters.  No victim wants to be re-victimized by an insurance company or defense lawyer.

A good piece of advice if you or a loved one are injured in a slip and fall and are unable to settle your case, is to speak with an experienced personal injury lawyer to learn about some of the issues that can arise with these claims, including what to expect at a deposition 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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Florida Car Accident Lawsuit

Posted By on February 8, 2018

When you are involved in an automobile accident in the State of Florida, several laws come into play.  Some of these laws are unique to Florida, which impact both the at-fault driver and their victims.

For instance, Florida is a “no-fault” state, it has a comparative negligence law, and, as a general rule,  there is no cap on damages in a filed motor vehicle accident lawsuit.  Here is a general overview of the legal issues involved with filing a car accident lawsuit.

 

Car crash scene with police nobody hurt

 

Automobile Accident Insurance Is Required In Florida

In Florida, automobile accident insurance is required by law.  The Florida Financial Responsibility Law, requires every driver to have full liability insurance coverage in the event of a crash.  In fact, the Bureau of Motorist Compliance checks for active car insurance coverage whenever a motor vehicle is registered in the State of Florida.

The reason why car accident insurance is mandatory in Florida is because our lawmakers believe mandatory insurance coverage helps protect the public by ensuring that they can pay for any damages they may cause in a car accident.

This also means that after most car accidents in Florida, accident victims will have to deal with an insurance adjuster, insurance company investigator, and sometimes, a defense lawyer paid by the insurance company to represent the at-fault driver.

What vehicles are not considered a “motor vehicle” in Florida?

In Florida, “motor vehicles” must be insured.  So, what is a “motor vehicle” under Florida law?

Florida Statute 320.01(1)(a) gives the legal definition.  In Florida, “Motor Vehicle” means:

(a) An automobile, motorcycle, truck, trailer, semitrailer, truck tractor and semitrailer combination, or any other vehicle operated on the roads of this state, used to transport persons or property, and propelled by power other than muscular power…;  and

(b) A recreational vehicle-type unit primarily designed as temporary living quarters for recreational, camping, or travel use, which either has its own motive power or is mounted on or drawn by another vehicle.

The following vehicles are NOT considered to be “motor vehicles” in Florida:

  • traction engines
  • road rollers
  • special mobile equipment as defined in Florida Statute 316.003
  • vehicles that run only upon a track
  • bicycles
  • swamp buggies.

Notwithstanding this law, a victim can still sue for damages sustained in an accident involving a moped, or bicycle, or swamp buggy (as well as these other kinds of vehicles).  Indeed, some of the injuries sustained in these kinds of accidents can be severe, life-altering, or deadly.

For those accident claims not involving a “motor vehicle,” standard personal injury law will apply.  One important issue here is whether or not there is vehicle-specific insurance coverage. Meaning, does the at-fault driver have insurance coverage for an accident caused by a moped, or bicycle, or swamp buggy or other kind of non “motor vehicle” vehicle.

4 Parts To A Florida Car Accident Lawsuit

There are 4 basic parts to an auto negligence action in Florida. These are:

  1. Preparation and filing of the lawsuit complaint and the filing of an answer by the defendant. In some instances, the defendant will move for a summary judgment. A Motion for Summary Judgment is essentially when the defendant denies that he or she is liable in any way for the subject car accident (meaning, there are no facts in dispute) and requests that the judge dismiss the case as a matter of law.
  2. Discovery – There are several ways to produce discovery in an auto negligence action. This can be done through Interrogatories, Request for Production, Request for Admissions, etc. Additionally, a party in the case (or their respective counsel) can request that a party appear to take testimony under oath. This is called taking a Deposition. The discovery process is the period of time in the lawsuit where the parties gather as much information and evidence as they can to prove their liability, or lack of liability, and damages.
  3. Mediation or Settlement Conference – This is where both parties meet (usually with a third party mediator) to discuss their sides of the case in hopes of entering into a settlement agreement. If a settlement is reached, the lawsuit will end here, and the agreed upon compensation will be distributed accordingly. If not, the case will then move to Trial.
  4. Trial – During trial, the jury will evaluate the admitted evidence in order to decide issues of liability and damages. Throughout the trial, and sometimes before the trial begins, the judge gives the Jury instructions on how to make these important decisions.

Jury Instructions In An Auto Negligence Lawsuit

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.

These instructions from the judge illustrate things like:

  • what facts to consider in an auto negligence case where fault is in question,
  • how to evaluate evidence given by the parties,
  • how jurors are to act during recess,
  • certain statutes to reference, which may be applicable in the case being tried,
  • the order of events of the trial and what to expect,
  • how to fill out the verdict sheet at the end of the trial, which will include a juror’s final opinion of fault.

Where Do You File a Florida Car Accident Lawsuit?

In Florida, the car accident lawsuit must be filed in the county where the accident occurred.  In some situations, you can file in the county where the defendant resides.   The jurisdiction and venue of each case must be decided based upon its unique circumstances.

Should You Be Concerned About Filing A Lawsuit?

Often, insurance adjusters have a bias against the accident claim simply because of the type of crash involved.

This is made clear when an insurance adjuster makes a low ball offer or denies a legitimate accident claim based upon their personal assessment of the accident.

For many, the thought of filing a lawsuit can be overwhelming. However, an experienced car accident lawyer should help alleviate this stress by spending time with the victim and explain how the law works, what their options are in terms of recovering compensation and the steps involved in a lawsuit.  Most victims do not want to be re-victimized by an insurance adjuster or defense attorney. Your attorney should make sure that doesn’t happen!

Who Can You Sue?

After a car crash, the accident victim may need to sue more than one party for damages.  That’s because more than one party may be legally responsible for the accident.

Defendants in a car accident case may include the driver of the motor vehicle who hit you, as well as his employer, or the owner of the vehicle (if different from the driver).

There may be occasions where the government is a defendant in the car accident lawsuit, too.   In these situations, “sovereign immunity” exceptions must apply in order to hold the governmental agency or entity liable for damages.

See: Car Accidents With Company Cars or Commercial Vehicles: What is Respondeat Superior?

Deadlines to File a Car Accident Lawsuit in Florida

In Florida, there is a law that sets a deadline for filing a car accident lawsuit to recover damages from a car crash.  If you do not file your lawsuit by the statutory deadline, then you will be barred from having your day in court. Which means even if the clerk accepts your lawsuit filing, the defendant can quickly move the court to have the lawsuit dismissed.

Florida Statute 95.11(3)(a), states that any action founded on negligence must be filed within 4 years from the date of the car accident. This law is commonly referred to as a “statute of limitations” but it is formally known as a “limitations of action” law.

Injury Claim v. Wrongful Death Lawsuit

A car accident victim has four years from the date of the crash to file a lawsuit to get compensation.

However, loved ones seeking wrongful death damages have a stricter deadline.  They have two years to sue for wrongful death under the Florida Wrongful Death Statute.

For more, see: How do statute of limitations work?

Comparative Negligence Law in a Florida Car Crash Case

Unlike many other states, we have a comparative negligence law that applies to car accidents. A victim should be aware of this law because it impacts the amount of compensation a victim may receive for their car accident related injuries.

What is Comparative Negligence?

Comparative Negligence allows the defendant to argue that the accident victim shares in the responsibility for causing the crash.  According to the law, because the victim is partly to blame, the defendant will not have to pay for that percentage of the accident that was the victim’s own fault.

How Does Comparative Negligence Work?

With comparative negligence, fault of the accident boils down to percentages. Meaning, the percentage of fault allocated to the victim is deducted from the amount of damages awarded by a jury.

Here is how it works:

  1. you take the total amount of compensation that the jury awards the victim;
  2. then, you multiply that amount with the percentage of fault attributed to the victim;
  3. that result of that calculation is then deducted from the total amount of compensation the victim was awarded; and
  4. the result of that second calculation is the amount that the victim receives from the defendant’s insurance company.

No-Fault Law in Florida Auto Accident Claims

As a matter of public policy, Florida applies a “no fault” theory to auto accident claims.  However, this does not mean that at-fault drivers are not held accountable for causing a car accident.

What Florida no-fault laws provide is that the victim’s medical costs and lost wages are covered by the victim’s own insurance carrier, regardless of who caused the crash.  The at-fault driver who causes the crash also files a claim, but with their own insurance company for emergency room visits and for other car accident related expenses, including medical expenses. This is how Personal Injury Protection or “PIP” coverage works in Florida.

PIP Coverage

PIP coverage, pursuant to Florida law, states that you must carry $10,000 as your minimum auto accident injury coverage and another $10,000 in coverage for property damage.

PIP Deadlines and Limits

A few years ago, the Florida Legislature responded to significant fraud in accident claims by amending the No-Fault Law.  Now:

  1. There is a 14 Day Deadline to go and see a doctor after a car crash. This applies to the driver and to any passengers.  If you fail to get medical care within two weeks of the crash, you have missed the deadline.
  2. While the PIP coverage is a full $10,000, that is not always available to the claimant. The initial coverage will be for $2500.  To get the full $10,000, you have to show evidence of an “emergency medical condition.”
  3. Only certain health care providers are covered by PIP. Massage therapists are not covered.  Acupuncturists are not covered.

Are There Requirements To File An Auto Accident Lawsuit For Pain and Suffering Under Florida’s No-Fault Law?

Accident victims can sue the at-fault driver (who caused the car crash) for their pain and suffering and other damages.  However, Florida’s No-Fault Law only allows lawsuits if the victim has serious damages.

Thus, minor accidents in Florida probably will not meet the threshold for filing an auto accident lawsuit.  As a general rule, in order for an auto accident lawsuit to be filed to recover for pain and suffering there must be evidence of either:

  • permanent bodily injury;
  • physical scarring that is significant and permanent; or
  • physical disfigurement.

Read: Florida Car Accident Compensation Law

What Damages Can You Recover in a Car Accident Lawsuit?

In a Florida auto accident lawsuit, you can claim two kinds of damages: economic and non-economic damages.  Economic damages in a car crash are those kinds of expenses and costs that can be easily documented, (i.e. paperwork to attest to their amounts.)  They include things like lost wages and hospital bills. Non-economic damages are things that are real harm to the accident victim, but do not have paperwork to easily confirm their cost.  The most common example of non-economic damages in an auto accident is pain and suffering damages.

If loved ones are pursuing a claim for damages after the accident victim has died, then the Florida Wrongful Death Law applies and defines not only who can sue, but how much they can be paid in wrongful death damages.

Damage caps

Laws have been passed in Florida that limit, or cap, the total amount of damages that can be paid to an accident victim in a Florida Lawsuit.  The limits cover certain kinds of damages.

As a general rule, there is no damage cap that applies to your Florida Auto Accident Lawsuit.  Practically speaking, most often judges and juries will tally economic damages and then decide the non-economic damages as a multiple (two times, three times) of that amount.

A. Medical Errors during Treatment for Auto Accident Injuries

If you sue the doctor for damage done to you during treatment of your auto accident injuries, then that is a separate medical malpractice case and it will have medical malpractice statute limits on damages you can be awarded.

B. Punitive Damages – Drunk Drivers

If you sue a drunk driver for injuries you suffered in a drunk driving crash, then the jury can award you punitive, or “punishment “ damages. These are non-economic damages that you don’t have to prove with evidence.  The jury can decide the amount of punitive damages it wishes to award.

However, there is a Florida law which puts a cap on punitive damages.  If the jury award exceeds that cap, then you will be limited to getting the amount of the cap.  See Florida Statute 768.73.

What Should You Do?

A good piece of advice if you or a loved one are injured in a car accident and you are unable to settle your case, is to speak with an experienced car accident lawyer to learn about some of the issues that can arise with filing a lawsuit, including settlement conferences or mediation, depositions, interrogatories, and the actual trial. 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.

 

 

If you found this information helpful, please share this article and bookmark it for your future reference.

Does A Florida Property Owner Have A Greater Duty Of Care To Children Than To Adults? 

Posted By on January 25, 2018

In Florida, premises liability law places a duty upon property owners to keep visitors, clients, customers, and sometimes even the uninvited guest or trespasser safe from harm while on their property. This is true both for residential real estate owners as well as commercial establishments.

This duty requires an owner to take reasonable steps to make sure no one gets hurt while on the premises. However, what the law considers as “reasonable” changes based upon the age of the accident victim.

Since children are presumed not to have the ability to make clear choices and “adult” decisions, Florida law imposes a greater duty of care upon property owners to protect children from harm.

Swimming pool 01653

What if a child is hurt or drowns in a backyard swimming pool?

Why Are Children Treated Differently Under Florida’s Premises Liability Law?

According to the Florida Supreme Court’s ruling in Burdine’s, Inc. v. McConnell, 146 Fla. 512, 1 So. 2d 462 (1941), it is because of the lack of comprehension of danger by children that merchants have a greater degree of care to children in the maintenance of his place of business.

Furthermore, related cases have ruled that adults who allow kids onto their land must exercise a higher degree of care for their safety because the kids haven’t arrived at their “age of discretion.”

What Should A Property Owner Do To Keep the Premises Safe for Children?

Property owners in Florida must act with a degree of care that is appropriate to the circumstances of their particular situation.  For example, a child that is five years old must be considered differently than a twelve year old tween.  See, Burdine’s.

For business owners, this means that they must monitor and maintain the entirety of their business establishment (from store aisles to restaurant booths to parking lots) with a greater degree of care if their clientele or customers will include children.

Home owners must consider the age of their minor guests, too.  For residential owners, their duty to keep their home safe for children means that they must insure the house, the driveway, and the yards are reasonably safe for the kids.  Home owners do not have to keep everything 100% “danger-proof,” but they must take reasonable steps to make sure that children are safe on their property.

Read: What Type Of Legal Duty Does A Florida Property Owner Have For Injuries To Visitors?

How Do You Prove A Premises Liability Claim?

A child victim, through their parent or guardian, must prove the owner or the occupant of the premises was negligent. This is done by showing how a dangerous condition on the defendant’s premises lead to the child’s injuries.

The parent or guardian must provide evidence that establishes:

(1) the defendant’s actual knowledge of a dangerous condition or

(2) evidence from which a reasonable inference can be made that the defendant had constructive knowledge of the dangerous condition.

However, just like with other personal injury claims, there are issues that must be evaluated when determining if a child victim premises liability exists, including issues related to owners and occupants, foreseeability, attractive nuisances, and open and obvious dangers — all of which are discussed below.

Owners versus Occupants

Often, the property owner has leased or rented the premises to another party (the “tenant” or “lessee”).  This may be true of residential property as well as commercial establishments.  In most lease agreements, the property owner has language that shifts, or at least tries to shift, responsibility for premises liability issues to the occupant. Which means, if there is an accident involving a child on the premises, the tenant/lessee cannot shield itself from liability by claiming since it doesn’t own the property it is not liable for the victim’s damages.

As a general rule, liability is determined by looking at the party with the duty at the time of the accident, and that isn’t always the party who has legal title to the land.  The accident victim may ultimately find that the party who is in actual possession or control of the premises at the time of the accident is the party that will be required to compensate the victim for his or her damages.

In many instances, a residential tenant or a new fast food franchisee, assumes the duty to “use due care to warn or to exclude, licensees and invitees from areas known to the possessor to be dangerous because of operations or activities or conditions.” However, liability is not automatic. The victim still must prove “that the dangerous condition existed for a sufficient length of time so that the defendant should have known of it.” See – Haynes v. Lloyd, 533 So. 2d 944 (Fla. Dist. Ct. App. 1988).

Foreseeability

In Florida, owners (or occupants) are not liable for the accident damages unless the plaintiff can prove with admissible evidence the element of “foreseeability.”

Here, the child victim must show that it was foreseeable that a child could be injured in some way on the property and also show that the property owner or business owner had a duty to warn of a dangerous condition.  However, the evidence does not have to necessarily show that the particular accident was foreseeable.  It is sufficient to show that there was a dangerous condition and that it was foreseeable that some kind of harm could result from that danger.

The Case of the Deadly Shrub

For instance, in the case of Mazyck v. Caribbean Lawn, Inc., 587 So. 2d 573 (Fla. 3d DCA 1991), little Jamone Williams died while playing hide-and-seek at a public housing project.  Jamone and his pals were playing in an area known to be where children liked to play. Sadly, as Jamone was trying to climb up into an umbrella tree to hide, he fell and was impaled on a “spear-like” protrusion in a shrub beneath the umbrella tree.

This area was maintained by a lawn maintenance company, Caribbean Lawn, under contract with Metropolitan Dade County.  The county agreement was for the lawn company to service the housing project grounds “to provide maximum safety to the public.”

The bereaved parents sued this lawn service company, arguing that the shrub’s “spear-like” protrusion was cut back and not in its natural state, and that this was known to the company because not too long before Jamone’s tragic death, a neighbor had shown the protrusion to a Caribbean Lawn employee and complained that it was dangerous.  However, when the neighbor asked the employee to cut down this “spear-like” protrusion, he refused.

The defendant argued that the accident was not foreseeable, and therefore Caribbean Lawn was not liable for the child’s death.

The Florida court ruled that “… the exact manner in which this accident happened might not have been foreseeable, but that is not required in order to impose liability on the defendant so long as it was foreseeable that a child might be injured in some way by the “spear-like” protrusion while playing in the area.”

The court held that there was evidence provided by the child’s parents that Caribbean Lawn was on actual notice of a non-natural, dangerous condition which foreseeably led to the death of the boy.

Open and Obvious Danger

Under Florida law, some conditions are so blatantly dangerous that they are considered “open and obvious” dangers. Owners (and occupants) with these kinds of dangers on their land are presumed to know that there is danger on their property and are required to take steps to safeguard people from harm.

However, if a young child (infant, toddler, pre-K) is injured or killed by an open and obvious danger, that owner is not automatically held liable for that accident. Parents and caretakers have the primary legal duty of care for very young children.

If there is an accident involving an open and obvious danger, it is not enough that the child was so young that they couldn’t comprehend the obvious risk involved. In these cases, the accident victim’s case must go further to demonstrate the owner’s failure to keep their premises safe in order for liability to be imposed upon the owner or occupant.

The Case of the Intellectually Challenged 6 Year Old Who Drowned in the Neighborhood Artificial Lake

Consider the tragic case of little David Askew.  When he was six years old, David was outside in the front yard of his home with his dad.  David had to be supervised at all times by an adult, because he suffered brain damage at birth and dealt with myoclonic seizure disorder and psychomotor retardation.  As his father washed the family cars, David meandered off and somehow reached the artificial lake that was part of the landscape of their Saga Bay residential development.

The lake shore near David’s house was undeveloped.  It had no fences, no warning signs, and no landscaping or trimmed shrubbery.  Sadly, David drowned in this part of the lake.

His grief-stricken parents sued the owners of that artificial lake for David’s untimely death.  However, they did not provide any evidence that the owner violated any duty of care for this “open and obvious” danger.  The parents were considered to have primary responsibility for the care of their child.  There was no evidence provided of an unusual danger not generally existing in similar bodies of water, or that the lake contained a dangerous condition constituting a trap.

The Florida courts held that the “… owner of a body of water is not liable merely because a child may be too young or of insufficient intelligence to understand the open and obvious danger of the water; the responsibility for the care of such children remains with their parents and caretakers. To shift the responsibility to the lake owner — by virtue of ownership alone — is to unreasonably require the owner to fill the lake or fence it in order to guard against being held liable.”  Saga Bay Property Owners Ass’n v. Askew, 513 So. 2d 691, 693 (Fla. Dist. Ct. App. 1987).

Florida’s Attractive Nuisance Doctrine

Under the Florida Attractive Nuisance Doctrine, a business owner or property owner will be responsible to a young injury victim if there was something on the premises that could be tempting or attractive to the curiosity of the child. In this situation, the business owner or property owner has a duty to exercise reasonable care to protect the child against dangers of such attraction.

For more on the Florida Attractive Nuisance Doctrine, read: What Happens When Someone Is Injured at a Business or Commercial Location?

What Kind Of Compensation Can A Child Victim Recover?

A child victim may recover basic personal injury compensation including:

Additionally, if a child is totally disabled, then the parents may be able to collect a loss of companionship. Also, parents or legal guardians may be able to recover their medical expenses for the child, until such time the child reaches maturity.  A child victim may even recover compensation for lost wages (if the child was working at the time) and/or future wages if he or she suffers a permanent injury that prohibits them from working as he or she ages.

Florida Injury Lawyer Can Help With Your Child’s Accident Claim

If your child has been seriously injured or killed in an accident, then the owner and occupant of the property where the accident occurred may be legally liable for damages.

Their parents or legal guardians must act on their behalf, as children cannot file lawsuits for themselves. So, as the legal representative of the minor child, the parents or guardians can investigate the incident, hire an attorney, make a claim and demand, and file a lawsuit in order for the minor accident victim to get justice.

Premises liability claims will need specific investigation in order to determine the scenario at the time of the injuries and the actual or constructive knowledge of the owner or occupant. There will be special statute of limitations concerns when the accident victim is underage, as well.

A good piece of advice if your child has been seriously injured or killed due to the negligence of a third party, is to speak with an experienced personal injury lawyer before you file a claim 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) 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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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.

_______________

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.
 
 
 
 
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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