What Are The Best Shoes To Prevent A Slip And Fall?

Posted By on August 10, 2017


Most of us don’t realize that footwear is one of the most common factors contributing to slip and falls including those in restaurants, grocery stores, condominiums and nursing homes. We may not be able to control the negligent acts of others, but wearing the right shoes could prevent a serious injury, and perhaps even a lengthy lawsuit to recover money to make us whole again.

Fortunately, it is never too late to educate yourself about what aspects make up shoes that are safe. Below are some points to be aware of when shopping for slip resistant shoes.

Common shoe conditions that cause a slip and fall:

  • Shoes that are too big
  • Backless slippers/sandals
  • Shoes with worn out soles
  • High heels/wedges

A safe shoe should consist of one or more of the following:

  • A ribbed, rubber, slip-resistant sole;
  • Raised back to support the ankle;
  • Velcro fastener; or
  • Strong laces to ensure a secure fit.

Read more…


Are You Being Sued By An Insurance Company For Money It Paid To The Party You Hurt Or Whose Car You Damaged?

Posted By on July 27, 2017

Subrogation lawsuits by insurance companies are a common occurrence in Florida car accident cases.

What is Subrogation?

Subrogation is when an insurance company seeks reimbursement from the party that caused a car accident for the money it has to pay to its insured for a claim.  The most common subrogation lawsuits relate to property damage claims (i.e. the cost to repair or replace a car) but they also include personal injury claims.

Sometimes, reimbursement can be sought from another insurance company (i.e.. the at-fault driver’s insurance company).  However, a lot of times, reimbursement is sought from the person determined to be the cause of the accident.  These are called “subrogation claims” or “subrogation lawsuits.”

In insurance industry terms, the accident victim’s insurance carrier will “subrogate” against the at-fault driver and/or his insurance companies to pay for the damage claims of their policyholder (the accident victim), called the “subragor.”



What Happens When A Subrogation Lawsuit Is Filed?

A subrogation lawsuit is filed just like any other lawsuit in the State of Florida. A complaint is usually filed in the county where the defendant resides and he or she is served with the lawsuit by a process server.  Once the defendant is served, he or she will need to file an answer within 20 days of being served or risk a “default judgment” being entered against him or her.

In the subrogation lawsuit, the plaintiff will be named as “Named Insurance Company a/s/o accident victim” versus “Other Driver”.  The complaint will explain that the insurance company plaintiff “became subrogated” to the rights of its insured against the defendant.

Which Insurance Companies Are Involved After a Motor Vehicle Accident in Florida?

In Florida, any number of insurance policies may provide financial assistance through insurance coverage after a car accident.

Personal Injury Protection (PIP) Insurance, which is mandatory under Florida law, covers you – regardless of fault (i.e. whether or not you cause the crash) – up to the limits of your policy (the minimum in Florida is $10,000.00).

There’s also Underinsured/Uninsured Motorist coverage (UM) which pays medical expenses, lost wages and related damages if a driver is in a car accident caused by a driver who does not have liability insurance.

The victim’s health insurance, through the victim’s employer or the victim’s own policy, may cover some of the medical expenses, including ambulance services, surgery and physical therapy.  If there is no health insurance policy, then Medicare or Medicaid may cover some of the medical expenses.

Property Damage and Bodily Injury Claims

There are two kinds of damage claims after a car accident.  After someone is in a crash, they may have to deal with physical injuries suffered in the accident as well as replacing or repairing their vehicle and other property that was impacted by the collision.  In a severe accident, for example, the accident victim may spend time in the hospital recovering from fractures or concussions while their SUV has been towed to a lot somewhere, undriveable.

Under an insurance contract, the two different types of claims are referred to as: (1) bodily injury claims and (2) property damage claims.

1. Property Damage

Bodily injury includes any kind of physical harm suffered in the crash, as well as emotional or psychological trauma that resulted from it.  Medical expenses, including any surgeries or physical therapy, are part of a bodily injury claim.  Pain and suffering is also considered part of a bodily injury claim, alongside lost wages, lost future earning capacity, etc.

2. Bodily Injury

Property damage after a motor vehicle accident involves the vehicle itself, of course, but also any of property that was harmed, as well.  Things like the victim’s iPad or laptop, their smartphone, and any other valuables (watch, jewelry, etc.) can add up to a significant property damage claim independent of any physical injuries you suffered.

The Subrogation Process

Because insurance companies know they will have to pay property damage claims and bodily injury compensation to their insured, the accident victim’s insurance companies have reserved certain rights in their policies.  An insurance policy is an agreement between the company and its insured or policy holder in which the parties agree that the carrier can proceed to seek reimbursement from the at-fault party for money it has to pay to its insured after a car accident.

In industry terms,  the  accident victim’s insurer is subrogated to the rights  contained in the insurance policy and can step into the policyholder’s shoes to try and get reimbursed either by settlement negotiations or by filing a lawsuit against the at-fault driver (and his insurance carrier).

1. Property Damage Subrogation

In most automobile accidents, the vehicle suffers some type of damage.  Sometimes, the insurance adjuster may determine that the car is “totalled.”  A totalled car is one where the cost to repair it is more than the cost to replace it.

The insurance company is obligated to cover this type of claim and pay the insured the agreed amount of coverage (replacement value or the fair market value of the car – check your policy).  If there were personal property items inside the vehicle at the time of the crash, they can be covered as well under the property damage provisions of the policy.

Thereafter, the insurance will ask its insured, to sign the necessary paperwork (“subrogation release”) so it can move forward on getting that payment reimbursed by those responsible for the accident.

Next, the innocent victim’s insurance company will demand, and if necessary file a lawsuit, against the at-fault driver for the money that it paid to get its policyholder’s car fixed or replaced, along with the repair or replacement of the damaged personal property.

Here is an example:

Let’s say a car crash occurred in Fort Lauderdale.  The innocent victim’s car is totaled by the other driver.  The victim’s insurance carrier covers the cost of the totaled vehicle under the terms of the policy under which premiums were paid.  It then requests that the victim sign documentation allowing it to pursue subrogation claims with the policyholder as “subragor.”

After the victim signs the paperwork, the insurance company seeks subrogation from the driver who was at fault in the accident.  If a lawsuit is filed, the insurance company will be named plaintiff, not the policyholder whose car was totaled.

2.  Bodily Injury Subrogation

Subrogation provisions in health insurance policies are more complex for bodily injury claims.  Just like property damage claims, they may allow the innocent victim’s carrier to go after the at-fault driver (and his insurance company) for reimbursement of the medical expenses and health care costs that were paid on behalf of the innocent victim.

However, they may also seek reimbursement against any other medical insurance policies that cover the innocent victim if those policies provide coverage for the accident injuries.

For example:

There is a car crash in Miami.  The accident victim has health insurance with his employer.  The victim is hurt in the crash and the medical bills total $20,000.00.  The company health insurance covers the full amount of $20,000.00 in medical expenses.

Then, the health insurance company seeks subrogation from the at-fault driver and his insurance carrier for the full $20,000 it has paid out in the victim’s medical expenses.

Uninsured Motorists and Subrogation Lawsuits

What if the driver has no insurance?  It is possible for an insurance company to file a subrogation lawsuit against the uninsured motorist.  However, these are often called “judgment proof drivers” because they likely do not have the funds to cover the reimbursement claim.

Aggressive insurance carriers may nevertheless file these uninsured motorist subrogation actions.  They may try and negotiate payment plans in settlement given the uninsured driver’s financial condition.

Defenses to Subrogation Lawsuits

Subrogation lawsuits can be hard fought, especially if it pits two insurance companies against each other.  Several defenses may be asserted:

 1. Contract Exclusion

One defense to a subrogation lawsuit is that the policy does not allow it. Contract law may determine that the carrier does not have a right to subrogate under the terms of the insurance policy.

 2. Sole or Contributing Cause

Another defense is the “subragor” was not innocent. Here, the insured accident victim is either the sole cause or contributing cause of the accident.  Thus, the insurance carrier either has no right to recovery or to recover an amount that is “diminished in proportion” to the percentage of cause attributed to their policyholder.

For more on fault, read: Does Fault Impact Damages in a Florida Car Crash?

 3. Failure to Mitigate

Failure to mitigate bodily injury damages is another subrogation defense. In this case, the argument is that the claims paid could have been lower if the innocent victim or the carrier had tried to keep the costs down.  Having admissible evidence of reasonable and necessary medical costs may be challenged as lacking in the subrogation claim.

For more on medical expenses, see: How Do I Pay My Medical Bills After a Florida Car Crash?

4. Failure to Prove Damages

Failure to provide proper evidence of the alleged property damages is another subrogation defense. Here, the argument is that the claims were paid, but the reimbursement claim fails to provide any reasonable basis for the “loss in value” asserted for the vehicle and its contents.

What Should You Do?

After a serious car accident, it’s difficult enough to recover from your injuries and the aftermath of being in the crash. So, being involved in a subrogation lawsuit is the last thing a car accident victim needs at a time like this.

Usually, these subrogation claims take place between the insurance companies and drivers are copied with correspondence and status updates as things progress.  However, subrogation lawsuits do get filed against individuals after there has been a motor vehicle accident here in Florida.

An experienced Florida personal injury lawyer can help you understand what subrogation involves in your circumstances, and what you can expect in any lawsuit that may be filed seeking reimbursement of paid claims by an insurance carrier after your accident.

A good piece of advice if you are being sued by an insurance company related to 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 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.

For more on car accident damages and subrogation see:


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.

Florida Sexual Assault and Rape Victim Claims Against Property Owners

Posted By on July 13, 2017

The statistics are shocking:  1 in 6 women in Florida have been raped at some time in their lives and almost half (42%) have been the victims of sexual assault other than rape. Additionally, 20% of men in Florida have been victims of sexual violence during their lifetimes.

Furthermore, people of all ages can be victims of sexual assault; from children to nursing home residents. Teenagers between the ages of 14 and 17 are at the greatest risk of being victimized and, sadly, men and women with disabilities are twice as likely to be victims of rape and sexual assault here in Florida than those without disabilities.

These victims can suffer serious bodily injury as well as significant psychological trauma as a result of rape or sexual assault.  For these victims, it is important to be aware of the issues and remedies under Florida’s personal injury law that may help them not only recover damages for the harm they have suffered but also for their future therapeutic and health care needs.
Premises Surveillance

For many rape and sexual assault victims here in Florida, justice lies, in part, in a premises liability claim.


How Sexual Assault and Rape are defined under Florida Law?

Chapter 794 of Florida Statutes is known as Florida’s sexual battery law. Sexual battery is defined at Florida Statute 794.011 which includes a list of behavior that is unlawful. Additionally, the statute enumerates the punishment that is imposed on an offender based upon the circumstances of the sexual battery, including the age of the victim and/or the offender.

Closely related, Florida Statute 784.046 relates to sexual violence and dating violence.  Under this statute, sexual violence exists “regardless of whether criminal charges based on the incident were filed, reduced, or dismissed by the state attorney.” This statute grants a victim of sexual violence the ability to file a “petition for an injunction for protection against sexual violence on his or her own behalf or on behalf of the minor child.”

How Do Florida Criminal and Civil Laws Help Victims?

Florida’s criminal laws help victims of rape and sexual violence through injunctive relief and imprisonment of the offender.

Additionally, the State of Florida, through the Bureau of Victim Compensation, offers financial assistance to rape victims for certain expenses under the Florida Crime Victims Compensation program.

However, it is through the civil courts and premises liability law that many victims of rape and sexual assault can find meaningful compensation for what they have experienced. This is because in Florida, state law can hold a property owner or business operator liable for monetary damages if it is found to be negligent in providing security at the time the crime occurred.

See: “Crime Victims’ Compensation in Florida: Money Provided for Florida Victims of Crime Who Are Injured and Hurt During Crime.”

Premises Liability for Rape and Sexual Assault

Property owners and business owners are under a legal duty to protect and keep people safe. These include landlords, universities, department stores, restaurants, bars and hotels.  Premises liability claims relating to sexual assault and violence involve examining several issues, including:

Duty to Protect

Property and business owners are to provide security that protects individuals on their premises from being victims of crime.  Measures that these duty bound parties should take include ensuring that:

  • Door locks are in good working order on apartment and rental home doors;
  • Window locks are in good working order on apartment and rental home doors;
  • Door and hallway and access door locks are in good working order for dorms, care facilities, nursing homes, hotels, resorts, and hospitals;
  • Background checks are run on all residents living in the apartment complex;
  • There is active patrolling of access points including parking lots, parking garages, hotel lobbies, dorm lobbies, hallways, elevators, and other areas vulnerable to criminal access; and
  • Repair and maintenance of premises is being kept up with, including adequate lighting of parking facilities and stairwells; upkeep of parking areas including landscaping; alarm systems and video monitoring of the premises.

Read: Landlord Failed to Prevent a Crime; Can The Tenant Sue The Landlord For Injuries?

Higher Standard of Care?

Some establishments may be held to a higher standard of care because of the kind of business or service they provide. Specifically, the hospitality industry (hotels, motels, resorts), schools and universities offering dorms for full-time student living, and nursing homes and care facilities must meet a higher duty of care to keep their residents safe.


Florida laws lay out rules and regulations to ensure that landlords take proper precautions to keep tenants safe. For example, Florida Statute § 83.51(2)(a) mandates that Florida landlords must reasonable provisions for locks and keys and for the safe condition of common areas.  The locks need to work, and no one besides those who are legally allowed to have keys to the property should have them.

For more, see: Florida Landlord May Be Legally Responsible Under Negligent Security Laws For An Injury To A Tenant Who Has Been The Victim Of A Sexual Assault Crime

Serving Alcoholic Beverages

Statistically, the likelihood of a rape or sexual assault occurring increases in places where alcohol is sold or allowed to be consumed.  If the perpetrator of the rape or sexual assault was over-served intoxicating beverages by the owner or operator, then this may be shown as a breach of their duty of care to keep patrons safe from harm.  In other words, bars, clubs, or restaurants that allow patrons to get drunk may be liable if that patron later commits rape or sexual assault.


Customers trust hotels and other establishments in the hospitality industry to provide a second home or dwelling that is peaceful and safe, even if it is only for a single night.  Accordingly, the hospitality industry is held to a higher standard of care in providing safety and security to its guests.

See: Do Hotels Consider their Duty to Provide Safety and Security as “Risk Management?

School Campus

Public and private schools, as well as Florida colleges and universities are entrusted with keeping their students safe from harm while on school property.  They have a high duty of care to protect students from sexual violence.  Statistics show that children, especially teenagers in their high school years, are especially vulnerable to becoming victims of sexual assault and rape.  Accordingly, Florida law will find the educational facility liable for negligent security damages if it has failed in its duty of care.

See: Crime Victim on Florida College or University: Have You or Your Child Been Hurt in a Crime on a Florida School Campus?


In any rape or sexual assault, the victim has the burden of proving the event occurred, which can be done with evidence compiled in the criminal case.  The victim must also show that the crime was “foreseeable” in order to hold the owners and operators liable for negligent security.

This can be done in a variety of ways.  One factor will be crime statistics.  If there has been a history of criminal activity in the area, then it can be used as evidence that the victim’s attack was foreseeable.   If there have been prior criminal acts on the premises owned or operated by the defendant, then this is concrete evidence that the victim’s attack was foreseeable by the owner or operator.

For more, read: When is a Crime Legally Foreseeable For a Florida Premises Liability Claim?

Proximate Cause

Another key component of the plaintiff’s case in a negligent security claim based upon rape or sexual assault is “proximate cause.”  Here, the victim must provide evidence that the crime occurred as a direct result of the negligence of the premises owner or operator.  There must be proof providing a direct link, or “proximate cause” between the failure of the owner or operator in its duty to provide security and protection with the criminal act.

For instance, if the rape or sexual assault happened in the stairwell of an office building or dorm, then evidence that the locks on the exterior access doors were not working, allowing the criminal to enter that stairwell will be sufficient to show the landlords negligence was the proximate cause of the sexual battery.

Similarly, if the crime victim was hurt during a sexual assault in a parking lot after sunset, then evidence that the owner or operator had failed to keep up the lighting in the parking lot or that they had failed to man the security guard posts that evening would also likely be enough show the property owner’s failure to act (or negligent security) was the “proximate cause” of the attack.

Premises Liability Insurance

Because Florida law places a duty of care upon property owners, and holds them financially liable for their negligence that results in rape or sexual assault, many of these owners and operators buy liability insurance policies to protect them from these claims.

Insurance can be helpful for a rape or sexual assault victim because it means that there should be money available to cover their personal injury claim.

However, liability insurance also means dealing with experts in defending against liability claims and in trying to limit or low ball settlements.  

See:  Are Florida Insurance Adjusters On Your Side? Beware of the Denied or Low Ball Claim

Negligent Security Claims

Negligent security is the failure of a business or premises owner or operator to provide safeguards to reduce the possibility of foreseeable criminal conduct on the property, resulting in personal injury.

Damages recoverable for a negligent security claim include medical expenses like EMS charges, hospital costs, prescription drug expenses, physical therapy needs, surgery costs, and other economic damages.

Especially important for rape and sexual assault victims are the psychological treatment expenses that should be covered as well.  This includes therapy costs, counseling, and any psychiatric medications that have been prescribed, or will be prescribed in the future (as expected by medical experts).

Rape and sexual assault victims should demand compensation for their emotional distress (past, present, and future) as well as their pain and suffering and lost wages.

Read: Damages and Money Awards to Crime Victims: Can You File a Personal Injury Lawsuits for Financial Help and Justice After a Crime?

Related Claims: Defamation

Media coverage of the sexual assault trial of Bill Cosby and the claims brought against him in civil actions has educated many rape victims and sexual assault victims about the option of suing for defamation under certain circumstances.

If a rape victim or someone who has been the victim of sexual assault here in Florida chooses to file a defamation action, then they can do so.  However, the claim need not be related to a premises liability action based upon negligent security.

Defamation claims in a sexual or rape setting generally relate to the harming the victim’s reputation by calling the victim a liar in the public domain.  Of course, the elements of a defamation of character claim are different than those needed to prove a negligent security claim.

Florida Premises Liability Lawyer Can Help Victims Get Justice

If you or a loved one has been a victim of rape or sexual assault, then you may want to investigate the possibility that this crime could have been prevented if the property owner or operator had taken appropriate and reasonable steps to provide adequate security at the time of the crime.

This is a tragic and painful experience, and we understand the complex difficulties that victims of sexual crimes must face.  However, victims need to know that premises owners and operators may share in the culpability along with the offender if they were negligent in providing security and other measures on their premises.

A good piece of advice if you or a loved have been the victim of rape or a sexual assault 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.

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

How Do You Know If A Cafeteria Acted Reasonably In Trying To Prevent a Slip and Fall Accident?

Posted By on June 29, 2017

Unfortunately, South Floridians and our visitors are no strangers to slip and falls in cafeterias. We have all kinds of cafeterias, including those at local public schools and university dining halls, as well as restaurant cafeterias, like the popular Piccadilly Cafeteria chain here in the Miami area.

If a slip and fall occurs at one of these venues, then the victim will be required to prove that the owner or operator of the cafeteria was negligent by showing how they failed to act reasonably in preventing an accident and protecting their customers.

Fruit-bar-pic-Web - Flickr - USDAgov


Slip and Fall Law In Florida

Someone who is injured by a slip and fall in a cafeteria due to the negligence of the owner or operator can suffer serious loss as a result. Under Florida law, the losses which can be recovered from the negligent party include:

  • lost wages,
  • hospital bills,
  • pain and suffering,
  • emergency room expenses,
  • physical therapy,
  • ambulance expenses, and
  • other economic and non-economic damages.

Read: Economic vs Non-Economic Damages

Our state’s “premises liability” law says a cafeteria owner or operator is responsible to pay for the slip and fall victim’s damages, or losses, if the accident victim can prove that (1) the cafeteria had notice of a condition which would causes a slip and fall and the condition causing the fall was the actual and proximate cause of that accident and (2) the victim was harmed as a result of the cafeteria’s negligence.

In other words, if the cafeteria owner/staff failed to act reasonably to protect its patron from falling and being hurt on its business property, then it is legally liable for that person’s damages.

How Do You Know If A Cafeteria Owner or Operator Acted Reasonably In Preventing a Slip and Fall?

Besides government regulations, a useful resource to examine when evaluating whether or not a cafeteria owner or operator acted reasonably is the risk control recommendations made by their insurance company.

There are several national insurance companies that provide coverage for slip and fall accidents in cafeterias. These insurance carriers are in the business of providing accident policies tailored to the food services industry like cafeterias, as well as fast food franchises, gourmet restaurants, etc. They are well versed in how those in the restaurant business (particularly cafeterias) should operate safely.

Cafeteria Insurance Company Risk Manuals

Since the insurance company will be the party paying the damage claim, they work hard to understand how slip and fall accidents can happen in a cafeteria, and what steps can be taken to minimize the risks of slip and fall accidents.

These insurance companies compile their research studies and past experience in risk manuals. Many of these cafeteria insurance carrier risk manuals are available online, including those provided by Travelers, Liberty Mutual, and Zurich.

Government Oversight of Cafeteria Safety

There are also Federal laws and regulations that govern how cafeteria operations are to be performed for maximum safety. Federal agencies like OSHA (Occupational Safety and Health Administration) and state agencies, such as the one published online by the University of California system, publish studies on the risk of slip and fall accidents in cafeteria settings.

These studies focus on increasing the safety for both patrons of cafeterias as well as cafeteria workers, as a public service. Laws support them in various ways. For instance, OSHA can inspect both public and private cafeterias and issue fines to the cafeteria operators failing to meet with OSHA safety regulations. The Americans With Disabilities Act (ADA) also sets federal standards for cafeteria premises, and the failure to comply with ADA statutes can result in fines and more.

See the EEOC’s ADA Guide for Restaurants here.

Questions and Issues to Consider After a Florida Cafeteria Slip and Fall Accident

When evaluating whether or not to proceed with a slip and fall claim against the owner or operator of the cafeteria, you’ll want to evaluate the strength of your case.

How do you know how strong your claim is against the cafeteria?

The more evidence that you can gather regarding what happened to you, and what the cafeteria owner or operator did (or failed to do) to prevent a slip and fall accident on their property, the better your chances are of a achieving a satisfactory resolution of your claim.

Evidence can include both witness testimony, as well as documentary evidence like photos, police reports, video surveillance, medical reports, etc.

Read: Documentary Evidence in Florida Personal Injury Cases

The keys here are to be organized and to be educated when negotiating with the insurance adjuster or the defense attorney.

Can you point to specifics that show the failure of the cafeteria to act in a reasonable and prudent manner to prevent your slip and fall accident?

Here are some questions we have compiled from our past experience with slip and falls and from several online risk manuals provided by food services insurance carriers that may help you evaluate your case against the Florida cafeteria. These questions include some taken from the above-referenced risk manuals published online by Traveler’s Insurance, Liberty Mutual, and Zurich.

1. Condition of the Cafeteria Floor

  • What was the condition of the floor itself at the time of the slip and fall? Was it slippery? Was it wet? Was it slick from grease or oil? Was it slippery from food particles?
  • If something that fell on the floor caused your slip and fall accident, how long had it been there? What was it? Who put it there? When was it removed? Who removed it? Was it their customary job to do so?
  • Where there floor mats in the area where you slipped and fell? If not, why not?
  • If so, were these floor mats slip resistant? Were they in good condition, or were they frayed or otherwise damaged or used?
  • If you fell in the kitchen or food prep area, then what was the condition of the floor in the cooking area? The dishwashing area? The paths leading to and from the kitchen to the serving area?

2. Furniture

  • Was there any cafeteria furniture near you at the time you fell? Did it hamper you?
  • What was the condition of the furniture (the chairs, the table, the tray stand, etc.)? Was it in good condition?
  • Was the cafeteria furniture designed for this purpose? Was it stable? Was it sturdy?

3. Trash

  • Where were the trash receptacles located in the cafeteria? Were there enough trash cans? Were they clean?
  • Was there any trash overflowing from them?
  • Did they smell? Were they sticky? Failure to maintain trash receptacles in a food services setting is often a sign that other cafeteria maintenance is not being performed, as well.

4. Clean Up

  • How often is the cafeteria swept?
  • How often is the cafeteria mopped?
  • How often are the cafeteria tables wiped?
  • How often are the cafeteria trays picked up?

5. Caution Warnings

  • When there is a spill or the floors are freshly mopped, are “Wet Floor” signs placed there as a warning?
  • Are there caution signs like “wet floor” used in the cafeteria?
  • Where are they kept? Who is responsible for putting them out as a public warning?
  • Who is responsible for putting caution signs out in the private kitchen and prep areas?

6. Foreign Substances

  • If you tripped over something on the floor, what was it? Was it a food item? Was it debris of some sort? Was it a chair, stool, tray, or other item?
  • Who is responsible for removing hazards off the cafeteria floor? How often do they do this? Why wasn’t this done before you fell and were hurt?

7. Maintenance of the Cafeteria

  • How fast are cafeteria employees instructed to clean up spills? How fast does this really happen?
  • How often are cafeteria employees instructed to sweep the floors? How often does this really occur?
  • How often are cafeteria employees instructed to wipe off counters? How often does this really occur?
  • How often are cafeteria employees instructed to wipe off handrails or supports? How often does this really occur?

8. Dishes and Trays

  • Does the cafeteria provide covers for drinks to minimize spills? If not, why not?
  • Does the cafeteria provide napkins and trays to protect against spills? If not, why not?

9. Ramps and Rails

  • Are there ramps and rails to help people carrying food items to move safety through the cafeteria, from the food line to the tables to the cash register?
  • Are there ramps and rails to help people easily access and exit the cafeteria?
  • Do these support systems comply with the ADA?

10. Workers’ Attire

  • What requirements are made upon the cafeteria workers’ attire: do they have to wear hair nets?
  • Do they have to wear shoes that are closed-toed? Are they required to wear shoes that are not high-heeled? Must their shoes have non-slip soles?

11. Third Parties

  • Have there been any repairs made on the cafeteria in the past six months? If so, who did the repairs? Did they contribute to the fall accident?
  • Is there a third-party cleaning service that cleans the cafeteria before, during, or after closing? If so, have there been complaints about this cleaning service? Have any other slip and fall accidents happened in locations they service in the past year?

Do You Have a Slip and Fall Damages Claim Against a Florida Cafeteria?

If you or a loved one have been the victim of a slip and fall accident that happened in a cafeteria here in South Florida, then you may want to investigate possible legal claims against the owner and operator of that cafeteria with an experienced Florida personal injury lawyer.

If the business who owns or operates that cafeteria failed to act reasonably to prevent that slip and fall or trip and fall accident, it may be legally obligated to cover the injury damages resulting from that fall, including physical therapy expenses, pain and suffering, medical costs, lost wages, and more.

A good piece of advice if you or a loved one has been injured in cafeteria 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.



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

What Can You Do When A Judge Won’t Rule On A Motion?

Posted By on June 15, 2017

In Florida, personal injury lawsuits are filed at the county courthouse every day of the week.  These cases proceed through the court system according to established rules of procedure.  There are the Florida Rules of Civil Procedure as well as local rules for particular counties and courts.

Checking Status of Lawsuit and Motion Online at Clerk’s Office

The lawsuits are indexed and maintained by the county clerk’s office.  The status of all civil lawsuits filed in the tri-county area can be checked by reviewing the online databases maintained by the clerk’s office.  For example, a slip and fall victim may review the status of his or her case at:

At these websites, you can find all of the documents filed in each personal injury lawsuit.  They will include all written filings by the parties, as well as Orders issued by the Judge.  Heavily-contested cases can have hundreds of documents filed with the clerk before the matter is concluded.

During the course of a slip and fall lawsuit in Florida, a variety of requests (usually in the form of “Motions”) will be made to the Judge pertaining to things like hearings, discovery and the entry of a judgment. Motions must be made in writing and they must follow certain criteria, including things like notice requirements.

Motions are presented to the clerk for inclusion in the case file and consideration by the Judge.  If the Motions do not meet procedural requirements, then the clerk may refuse to file them or the Judge may refuse to hear them.

Chase County, Nebraska courthouse courtroom 1


What is a Motion?

Motions are written requests by a party to a lawsuit asking a Judge to make a specified ruling or Order related to an issue. For example, a slip and fall victim as a “party plaintiff” can “move” to have the court issue an order requiring the defendant turn over any video surveillance of the slip and fall.

The judge’s decision on a Motion is official once it is documented through a written order signed by the judge with copies provided to all parties.

To see an example of a motion filed in a Florida court, see our “Motion to Set Aside Summary Judgment.”

Getting a Judge to Rule on a Motion

For the most part, Judges decide, at their discretion, when they will issue a ruling.

So, what can you do when a Judge won’t rule on a motion?  From our years of experience, here are 5 practical suggestions to get the Judge to rule on a motion:

1.  Set a Status Conference

In Florida, either side can schedule a conference with the Judge.  All the parties must be notified of the request, of course.  Under Florida Rule of Civil Procedure 1.200, you can ask for something called a “Case Management Conference”.

Here, you can remind the Judge that a motion is still pending.  But be prepared, once you request a status conference, things may snowball.

At the conference, the Judge can do several things.  For instance, the Judge can rule on pending matters, either on his or her own volition or because of another party’s request. Additionally, the Judge can:

(1) Scheduling hearing dates to hear motions;

(2) Scheduling the trial date;

(3) Making rulings on discover, including the admissibility of documents into evidence;

(4) Discussing agreements between the parties regarding safeguarding of electronically stored information / evidence;

(5) Pursuing the possibility of settlement;

(6) Order Mediation;

(6) Referring issues to a magistrate for findings of fact; and

(7) Scheduling more conferences or determine other matters that may aid in the disposition of the case.

2. Call Judge’s Office

Another approach is to call and check on the motion with the Judge’s office (usually the Judge’s Judicial Assistant, or JA, will be the one answering the phone). The JA is the “front office” for the Judge’s office.

This is an informal tactic and is entirely legal to do without notifying the other side that they are following up with the court.

However, no attorney should speak to the Judge about a pending matter without all other counsel being present.  That is not ethical and it is not allowed.

This approach begins with the lawyer (or his or her assistant) calling and asking to speak with a Judicial Assistant.

Judicial Assistants provide administrative support to the court.  This includes answering questions about the court’s calendar and the status of pending motions.

For instance, if you want to follow up on your Motion, a phone call with the JA may reveal that the Judge has been presiding over a time intensive trial and has spent most work days occupied over this proceeding.  The JA will likely inform you that the Judge will get to pending motions as soon as he or she can.

3.  Seek an Extraordinary Writ

After some time has passed, or when there is urgency to your motion, you may need to take some extraordinary measures to get a ruling on your motion.  This may mean going to the reviewing court (the state court of appeals) for help.

Here, you can file something called an “extraordinary writ.”  Writs are orders that allow actions to proceed and they are issued by the higher courts at both the state and federal levels.  There are all sorts of writs, such as “writs of certiorari” issued by the U.S. Supreme Court, to “writs of habeas corpus” issued in criminal cases.

For a pending motion, it is likely that the extraordinary writ you will seek is a “writ of mandamus.”  You do this by filing a “Petition for Writ of Mandamus” to the Florida appeals court.

If your petition is granted, then the higher court will issue its “writ of mandamus” to the Judge presiding over your lawsuit.

It will compel the trial Judge to rule on the motion.  The appellate court will not rule on the motion, but it has the power to demand that the lower court Judge do so.

Before taking this step, consider the following:  Obtaining a Writ of Mandamus is difficult to achieve.  This is because your burden is high: you must establish that the Judge has failed to follow his or her duty to rule on your Motion.

Also, the other party (parties) to your lawsuit will be required by the appeals court to file a response to your petition.  They may disagree with your petition and may seek to undermine your petition by pointing out weaknesses in your position and argue them against you.

Additionally, some trial Judges do not appreciate having their behavior reviewed, but particularly on something like a calendar delay.  Judges in Florida are busy, and chances are they have a good reason for not yet ruling on your motion.

Finally, filing an extraordinary writ must be weighed against the very human reaction a Judge may have for taking this step to force him or her to act.

4. Write a Letter

Another informal approach may be to write a letter to the Judge about the pending motion and the need for a ruling.  The Rules of Procedure states that this is acceptable as long as all the parties are copied with the correspondence.

In the letter, you can be short and sweet.  Just remind the Judge that a motion is outstanding, and ask for an update.  Address the letter to the attention of the Judicial Assistant.

5.  Check the Rules of Procedure

Finally, there are certain cases where the Judges do have some procedural requirements to meet in ruling on Motions made in pending litigation.

For instance, family law cases are special kinds of matters.  In family law, child custody issues may be vitally important and need fast action.  The same is true for child support issues.

So, in Florida family law cases, the Florida Supreme Court has enacted a special set of procedural rules.  These include mandates where Judges have to rule, or at least set a hearing, on certain issues. See, Florida Family Law Rules of Procedure.

Motions for Summary Judgment

Most motions deal with specific issues, such as extending discovery deadlines, excluding some type of evidence or witness, or compelling actions like depositions.  However, there is a Motion that can end a case by entry of a judgment in favor of the moving party, called a Motion For Summary Judgment (MSJ).

Florida Rule of Civil Procedure 1.510 governs this type of request.  Under the rule, the Judge is instructed that a judgment must be rendered immediately “…if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

In a Motion For Summary Judgment, the party is asking the Judge to rule on the entire case and enter a final judgment in the proceeding.

These motions replace the need for any trial because they are summary dispositions of the lawsuit.

Accordingly, it will likely take a Judge longer to review, analyze and decide on a Motion for Summary Judgment.   The Judge may be mandated to rule “immediately,” but that does not mean he or she will not need time to consider the arguments of counsel during the hearing, as well as the documents filed, like memorandum of law, regarding the MSJ.

Strategically, it may not be wise for the movant to be anxious when awaiting the Judge’s decision on a summary disposition.  If it’s a close call, then aggression may sway things to a non-appealable denial of the MSJ.

For more on motions for summary judgment, see:

What Should You Do?

If you have been injured in a slip and fall here in Florida, then you may have no choice but to file a lawsuit for damages if the person (or persons) responsible for your injuries refuses to settle or take responsibly for their actions.

Some slip and falls are notorious for having stubborn defendants who may force the injured person to file a personal injury lawsuit.  For instance, grocery stores like Publix and Walmart can be very difficult when it comes to these claims.

Having an experienced Florida personal injury lawyer on the team can be a great advantage to a victim.  For example, experience can provide insight into the strategies of insurance companies and their defense lawyers as to how they respond to claims.

However, it’s also important to understand how an experienced injury attorney can provide expertise in how best to keep your case moving forward toward trial and a final result, such as having Motions heard and Orders issued.

A good piece of advice if you are having difficulty getting a motion heard by the court, is to speak with an experienced personal injury lawyer. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person) to answer your questions.

You May Be Also Interested In:


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.

How Do Personal Injury Contingent Fee Agreements Work in Florida?

Posted By on May 24, 2017

How Much Money Will A Victim Receive if a Settlement or Jury Award is Granted In a Personal Injury Lawsuit?

If you have been injured in a car accident or a slip and fall in Florida and have hired a personal injury attorney to represent you with your claim for compensation, then you have likely entered into a “contingent fee agreement” with that lawyer.

FEMA - 14016 - Photograph by Jocelyn Augustino taken on 07-14-2005 in Florida

What happens to the hospital bill when you sign a contingent fee agreement?

What is a Contingent Fee Agreement?

A “contingent fee agreement” is a type of written legal agreement where you and your attorney establish an attorney-client relationship.  These agreements are required when hiring a lawyer to commence legal representation on a contingent personal injury matter.

The language in a contingent fee agreement outlines how much an attorney will be compensated for his or her services. This amount paid to the attorney for services rendered is contingent upon:

(1) A settlement of the case;

(2) A trial verdict in favor of the injured party; or

(3) An arbitration award on your behalf.

Thus, a personal injury lawyer will not receive payment for services rendered unless the victim receives compensation from the negligent party (or their insurance company).

Does The Client Pay a Retainer to The Attorney?

In most contingency fee agreements, a client does not pay a retainer to the attorney. A retainer is typically only required in cases where the lawyer is being paid an hourly rate, and not on a contingency fee basis.

How is The Attorney Fee Determined?

At the time the contingent fee agreement is signed, the lawyer will discuss with the client the percentage of the recovery that will be paid to the lawyer for his or her services. Some common issues that impact the percentage paid to a personal injury lawyer include:

1.  If The Case Goes to Trial or Appeal

Most personal injury contingency fee agreements allow for the percentage paid to the lawyer to increase if the case goes to trial, with another increase if the case is appealed.

2.  If The Lawyer is Not Successful

The key factor in a contingent fee agreement is that the lawyer will not be paid unless the case is won and damages are paid to the victim.
Additionally, the accident victim does not have to pay his or her lawyer while the case or claim is being pursued.

3.  Florida Rules of Professional Conduct Set the Percentages

Every lawyer licensed to practice in the State of Florida is governed by the Florida Rules of Professional Conduct (“Rules”), as set forth by the Florida Supreme Court.

These rules set the maximum percentage rate that can be charged by a Florida personal injury attorney in a contingent fee contract. This is true unless:

(1) a smaller fee is agreed upon and written into the contingent fee agreement; or

(2) the court approves a higher fee at the time that the case is filed as a lawsuit.

**Note: There are different rules for standard accident and injury matters and medical malpractice contingent fee cases.

For details in how these percentages are established under the Rules, and “creative attorneys’ fees,” read the discussion of “Personal Injury Fees in Florida,” on our website HallandaleLaw.com.

How Does The Amount of Compensation Received By a Victim Change When a Personal Injury Lawsuit is Filed?

The longer a claim or case stays open, the more costly it becomes for the plaintiff. That’s because contingent fee agreements state that the victim’s personal injury lawyer receives more compensation if the case requires filing a personal injury lawsuit.

Because the amount of fee paid to a personal injury lawyer increases once a lawsuit is filed, some clients instead choose to accept a pre-suit settlement offer.

Sometimes, the best time to accept a settlement offer is during pre-suit negotiations with an insurance adjuster. This is true even where the liability is clear and the documentation of damages is well established. (For more on this issue, read our post on documenting your Florida personal injury case.)

However, a victim is sometimes unable to settle their claim quickly, as insurance adjuster will try to diminish their damages as much as possible. This is commonly seen with car accident injury claims.

See: Why is it hard to get a settlement in a rear end car accident claim?

Trial and Appeal

When pre-suit settlement can’t be reached, a victim must file a personal injury lawsuit in order to get justice.

When a case is in litigation, your lawyer will have to spend additional time and money to purse a claim. This in turn means the compensation your lawyer will receive will increase. That’s because of the time spent on things like discovery, attending court hearings and the trial and the costs for things like expert witnesses, filing fees, discovery fees, services of process, and court reporter related charges.

Furthermore, in the event an Appeal is filed, then the lawyer will have to perform even more work including legal research, drafting an appellate brief, possibly drafting a responsive brief and/or arguing before the appellate court, along with paying for trial transcripts. All of this extra works involves many hours of work, which is why a higher fee is charged when a case is take up on appeal.

Read: What Happens in a Deposition for a Personal Injury Case?


Sometimes, your lawyer will find it advantageous to your case to bring in additional counsel to pursue a claim.  The are several situations in which a client may benefit from having additional lawyers working on their file.

One common example is “local counsel,” where hiring an attorney from the local area is helpful when the case is being litigated in another county or other part of the state.

More commonly, additional counsel may be hired to research specific areas of the law in your case This person would be considered the “research attorney”.

It is important to note that if another lawyer comes on board, it does not change the amount of recovery that you will receive should there be a settlement or jury verdict.  Your original lawyer will receive less, not you.

Expenses of Litigation

Expenses during litigation include things like:

  • Certified Fees for things like Police Reports
  • Copy costs for things like financial records to prove your lost wages
  • Filing fees at the clerk’s office
  • Deposition costs / court reporter fees
  • Expert witness fees for expert witnesses (like a doctor giving his opinion on the severity of your injuries).

Payment of these expenses are sometimes deferred until a later date; they are deducted from your recovery after your case has been settled or won at trial.

Your contingent fee agreement will outline the possible costs of litigation and how they will be deducted from your share of the recovery amount. Meaning, the payment of these expenses does not come out of your lawyer’s share of the recovery.

Court Reporters

Court reporters record the words that are said by the judge, the lawyers, and the witnesses, which then becomes “trial record.”

Specifically, they are expert stenographers who are entrusted with the transcribed record of the case during trial as well as transcriptions of testimony before trial.

They also assist in depositions. In their official capacity, they swear in witnesses and take down their testimony, as well as any objections made by the lawyers during the deposition. Everything that happens in a deposition is recorded in the deposition transcripts.

Court reporting services can be a big expense in an injury case that becomes a lawsuit and goes to trial. Additionally, if the case is appealed, then the entire “trial record” must be ordered to prepare the appellate briefs and arguments.

Typically, court reporters charge for the transcription per page, and charge an hourly fee for their appearance at a hearing or deposition.

Medical Liens

Health care providers generally understand the process when a personal injury claim has been filed. They know that the at fault person will ultimately be held responsible for compensating the victim for their medical expenses.

However, these providers will still take steps to make sure that their invoices are paid, and may file medical liens in order to do so.

These liens are filed in order to insure that the provider has a legal claim against the final recovery in the case. Under Florida law, a valid medical lien can be asserted against personal injury settlement funds or recovery proceeds.

However, if the medical provider does not file a medical lien, his or her invoice must still be paid in full.

What is a Closing Statement?

At the end of the case, you will be given an itemization of all the costs and expenses incurred during the course of your representation (a “Closing Statement”).

It will detail all the costs and expenses as well as the attorney’s contingent fee.  It will also tally how each item is deducted from the total recovery and show any costs that you do not have to pay.  Most importantly, the statement will provide you with the net recovery that you will receive.

Both you and your attorney will go over this itemized statement, and both of you must sign the Closing Statement before the proceeds can be distributed.

What Should You Do?

If you have been injured in an accident, then an experienced Florida personal injury lawyer can be very helpful in pursuing your claims for damages and in seeking justice for your harm.

A good piece of advice if you have been harmed as a result of someone’s negligence, 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 procedures to lawfully recover certain evidence. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person) to answer your questions.

You May Also Be Interested In:


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.

Documentary Evidence in Florida Personal Injury Cases

Posted By on May 18, 2017


Whether you have been in a car accident or slip and fall in Florida, it is important to understand some of the basic issues related to documentary evidence, including how documents become admissible evidence. This knowledge is so important because admissible evidence is at the foundation of proving any personal injury claim.

Seal of the Miami Police Department

Evidence of Public Records: the Seal

What Evidence Can You Use To Prove Negligence

In Florida, an accident victim has the burden of proving both (1) the liability (negligence) of those responsible as well as (2) damages in order to recover compensation for his or her injuries.

Proving liability, or negligence, is accomplished by providing evidence of the tortfeasor’s wrongdoing.

Evidence can be in the form of:

  1. Witness testimony/ Expert testimony
  2. Documents (Interrogatories, Requests For Production, Request For Admissions, medical bills, police reports, etc.)
  3. Physical evidence (damage to a vehicle, a cracked sidewalk, slippery hotel bathtub)

How Do Facts or Information Become Evidence in a Florida Personal Injury Case?

Evidence is defined by specific legal principles, rules, and laws that control how juries and judges analyze information to determine its reliability, truthfulness or admissibility.

For example, opinion evidence from an expert has specific rules and regulations which must be followed, like providing a scientific basis for their testimony, in order for a judge or jury to be able to rely on the expert’s opinion.

Here in Florida, there are the Federal Rules of Evidence for federal matters and the Florida Evidence Code for state claims.

Sometimes, certain issues in a personal injury lawsuit require a judge to hold an evidentiary hearing for the purpose of making a determination on a specific aspect of the case.  At an evidentiary hearing, a judge can consider expert and lay witness testimony, and rule on whether or not certain information should be admitted, excluded, or limited for use in the case.

Some of these evidence rulings are so important in the way they can impact the outcome of a lawsuit that they are often the basis for filing an appeal.

Notwithstanding how complex evidentiary issues can be, there are some basic guidelines to know when using documented facts or information to prove negligence or damages in a personal injury lawsuit. 

Types of Documentary Evidence

Simply stated, documentary evidence is anything that is in the form of a document.  However, the term document can mean many things, including:

Demonstrative evidence

This involves physical objects that can, for example, prove an argument or illustrate damages. They include things like photographs, videos, audios, maps, graphs, charts, security camera footage, x-rays, MRI results, etc.

Digital evidence

Digitized information includes items like emails, instant messages, cell phone logs, hard drive data, online banking transactions, archived tweets and Facebook posts, etc.

Written evidence

Contracts, invoices, medical records, medical bills, auto repair bills, letters, notes, therapy notes, and more can become written evidence.  Any form of paperwork with pertinent information can be considered written evidence in your case.

Scientific evidence

This can include the formalized written opinion or report from an expert in a scientific area pertinent to your case, such as an accident reconstruction specialist.  It can also be treatises and other scientific material that helps prove liability or damages for you.

Your first step is to gather as much of these things as you can to support (1) the argument that the defendant is responsible for the accident and (2) the damages you have and will incur as a result of your injuries. 

Best Evidence Rule

As you gather information for your case, it’s important to know about the “best evidence rule.”  This rule essentially says that if you want to have a document considered as evidence, the best thing to have is the original document.

For example, if you want to prove your medical expenses, then it’s best to have the original invoices and bills from the hospital, lab, pharmacy, treating physician, surgeon, anesthesiologist, physical therapist, etc.

If you cannot obtain the original document, then under the “best evidence rule,” you find the next best thing.

For instance, your bank may not release its original files to you.  However, it may give you photocopies of your financial records with an affidavit that these are true and correct copies of the original documents.

In proving your claim for settlement, you may not need to meet the best evidence rule.  However, it’s important to know that it will apply if any lawsuit is filed.  Take the time to gather as many originals as you can, in case you need to meet the “best evidence rule” later.


Another important issue is the requirement to protect and secure the information or documents that you have in your possession, custody, and control.  As you gather documents, you need to make sure they are not lost or destroyed.

In the event the information is lost or destroyed before the other side in a lawsuit has the chance to review them, the other side may be able to assert a claim for “document spoliation” against you.

Under “document spoliation,” both sides have a legal duty to protect all the records in their possession, whether or not they help their side or not.  This legal duty begins with the accident itself and continues until the matter is finally resolved.

In some cases, this is more of a concern for the defendant in an accident case than a plaintiff.

For instance, after a slip and fall in a grocery store, the defendant may be required to produce cleaning logs or maintenance records, as well as other information that may be helpful to show the defendant was negligent.

If these records have been intentionally erased or destroyed, then the slip and fall defendant (the business or property owner) may have violated its duty to protect against spoliation.

Authenticating a Document

Once you have located your paperwork, you need to know how documents become admissible evidence.

Essentially, an injury victim must be able to show that the document is exactly what the victim is claiming it to be.  How this is done depends on the document type.


Public records are things that you get from an official government source.

Police reports are a common type of “self-authenticating” document.  As explained by Rule 902 of the Federal Rules of Evidence, some documents stand on their own and are respected as being authentic for purposes of being admitted as evidence.

Other types of self-authenticating documents include:

1. Public Records Sealed and Signed by the Government

If the document has a seal from the county, state, municipality, or any agency or department, then it can be considered as evidence.

2. Certified Public Records

Sometimes, the government does not provide a seal but it will certify your copy of the original as it is kept on file.  Certified copies of birth certificates and death certificates are well-known examples of these forms of public records.

3. Official Publications

These are publications issued by a public authority.  For instance, official publications from the Department of Transportation regarding the hazards involved with the intersection where your accident happened might be helpful in proving liability in your case.

4. Newspapers and Magazines

Printed material purporting to be a newspaper or magazine in most circumstances cannot be used for evidence purposes.  However, pictures within a newspaper or magazine, if they can be authenticated, may be used.

5. Affidavit or Acknowledgement

Affidavits and acknowledgements are commonly used to prove documents, particularly business records.  You can obtain these affidavits, or demonstrate that you are ready and able to do so, in order to support many documents in your accident claim.

Here, someone who has knowledge of the original document and how it is created and kept by the organization signs an affidavit to that effect.  That affidavit incorporates by reference the document in question for all intents and purposes.

Together, the affidavit and its attached document, can become evidence in the case.

Where Do You Find Documentary Evidence?

It can be a difficult job to track down documentary evidence needed to prove an injury claim.

For instance, digital evidence can be difficult to retrieve.  A victim may need to extract data from hard drives, cell phones, even internet-enabled devices like some mapping applications in a car involved in the accident. Also, you may need to recover information from web or cloud based data sources, like Facebook, Instagram, Dropbox or Twitter, all of whom are not eager to share their data.

Here are some common sources of documentary evidence which can be used to support a Florida accident claim:

  1. Police Department – police report
  2. EMS or Ambulance Service – records of your transport and treatment
  3. Hospital Administration – all records of your treatment from admission to discharge
  4. All Medical Providers – treatment records and prognosis for future medical care (treating physician, surgeon, psychologist, etc.). Their office staff should be helpful in providing this information since they are asked to do this sort of thing all the time.
  5. Witnesses – any notes made by witnesses to the accident, as well as photos, videos, or audio files made at the accident scene. You can find the names of witnesses in the police report.
  6. Your Personal Records – diaries you have kept of your recovery and care, including documentation of pain and suffering, emotional trauma, etc. It’s a good thing to keep a written record of what has happened to you.
  7. Government Agencies – documents pertaining to the accident site, such as past accident records for that location. You may need to do online research to determine exactly what agency governs the geographic whereabouts of your accident.
  8. Your Personal Investigation – photos, graphs, maps, etc. that you have compiled of the accident site after the injury happened, such as photos of the cracked sidewalk where you fell at the grocery store.
  9. Your Personal Photographs – photos you have kept of your injuries as they have been treated during the course of your recovery (showing things like bruises fading, your ability to stand or walk, scars, etc.). These photographs can be taken daily or weekly, and can be combined with your diary of the incident.
  10. Records of Caregivers – if your loved ones and hired home health care have documented your injuries or recovery in any way, these documents can be helpful in proving your damages and severity of your injuries. Often, caregivers observe important nuances about the victim’s injuries and recovery that the victim doesn’t notice and these can be vital to proving up damage claims.
  11. Employment Records – these can be used to prove your lost wages and lost future earning capacity. In order to get reimbursement for any money you have lost from being out of work from the accident, you will need to document those sums with evidence.
  12. Your Financial Records – things like out of pocket expenses for wheelchairs or canes, ice bags, and more can be proven as well as other, bigger expenses like therapy costs and prescription medication expenses. Even minor expenses (like an Ace Bandage or an ice pack) can be covered in an accident claim, but only if you have the proper documentation to support it.

What About Information You Give To An Insurance Adjuster?

It is extremely important that you know what to expect when negotiating your personal injury claim with an insurance adjuster.

Adjusters are trained to use any piece of evidence against you.

For this reason, when you are asked to give a statement after your accident, be mindful of what you say. That statement can, and will likely, be used as evidence against you in a lawsuit.

Read: Does a Florida Insurance Adjuster Want to Record Your Statement about an Accident or Injury? 10 Things to Know About Recorded Statements by Insurance Adjusters

What Should You Do?

Often, accident victims and their families find that dealing with the aftermath of an accident is overwhelming enough without having to deal with proving up an insurance claim.  An experienced Florida personal injury lawyer can be invaluable here, not only in helping get a claim resolved but also in getting justice for the accident victim.

A good piece of advice if you have been harmed as a result of someone’s negligence, 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 procedures to lawfully recover certain evidence. 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.



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


Florida Car Accident Claims  

Posted By on May 4, 2017

In Florida, car accident victims do not need to hire a lawyer to recover compensation for their injuries. They can file a claim with the at-fault driver’s insurance company on their own.

Things to Know When Filing an Auto Accident Claim without a Lawyer

Before you file your car accident claim here in Florida, there are some issues you should be aware of which might affect your claim.  Some of those issues relate to the documents that you will need to submit before an insurance company will consider your claim as well as issues related to reimbursing medical providers for your treatment.


GMC Savana Ambulance


This blog provides lots of information on accident claims.  See the left sidebar topic for more on car accidents.

What Damages Can You Claim In A Florida Car Accident?

The purpose of filing a claim and recovering money is to make yourself whole again after a car accident. This is done by seeking reimbursement for the costs and expenses caused by your car accident.  Thus, if you are filing your claim yourself, then you need to know the type of compensation that is available to you as well as the necessary information in order to prove your losses.

What are Damages?

Damages are the amount of compensation an injured person can collect from the at-fault driver, or from their insurance company.

There are two kinds of damages in a Florida Car Accident claim: economic damages and non-economic damages.

Read: Economic vs Non-Economic Damages

Economic Damages in a Car Accident Claim

Economic damages are the kinds of losses you can document through invoices, receipts, pay stubs, and other kinds of paperwork.

Examples of economic damages in a Florida auto accident include:

  • Doctors’ bills
  • Hospital Stay bill
  • EMS invoice
  • Rehabilitation expenses
  • Future rehab costs
  • Lost wages (income, salary) in the past
  • Projected lost income in the future because of the accident
  • value of vehicle that was totaled in the accident
  • value of the computer, tablet, etc., that was destroyed in the crash.

Non-Economic Damages in a Car Accident Claim

Non-economic damages are more fluid in nature.  They don’t come with a weekly report or monthly invoice, but they are just as real.  Examples of non-economic damages in a Florida car crash are:

It is much harder to recover non-economic damages in a Florida Car Accident Claim because they are more difficult to prove.  Insurance adjusters often dispute the amount of economic damages sought by a car accident victim. For example, insurance adjusters usually take the position that the victim is either exaggerating or lying about their pain and suffering.

See our posts:

Reasonableness in Damage Amounts

Remember, insurance adjusters work with claims all day long.  They are familiar with most of the local medical providers, including the pain management doctors, chiropractors, and orthopedists.  Insurance adjusters have read the medical providers’ opinions on permanent injury, and they are aware of the relationships these providers have with certain lawyers, which plays into how credible they believe a claim to be.  In other words, they view certain doctors opinions to be more credible than other physicians’ opinions.

Adjusters have been trained to evaluate injury claims (like herniated discs and shoulder injuries), including the recovery time for the most common accidents.  More simply put, they already have a pre-conceived idea of what your claim is worth, even before you even submit your documentation.

Along with education and experience, insurance companies use automated software to tally what they believe should be paid on claims.  Their software will process your claim using its internal operations and compute the proper settlement amount based on the software’s data.

From a personal injury lawyers’ perspective, this software is problematic because every claim is unique, and each person (and their damages) is different. From the adjuster’s viewpoint, a claim should be evaluated against past claims to determine what a “reasonable” damage amount should be.

If a victim wants more than what the insurance company believes is a “reasonable” amount, then he or she will need to document why the claim is outside the protocols of their claim-analysis machine.

For details on how this works, read our posts:

What Happens If The Insurance Company Doesn’t Act In Good Faith Toward Your Claim?

In Florida, insurance adjusters are obligated to act fairly with those who file claims with that company.  This is their “duty of good faith.”

However, insurance carriers and their adjusters are notorious for treating accident victims and claimants poorly.  This is evident in certain types of accidents, like rear-end crashes, or some kinds of injuries, like soft tissue injuries.

For more here, read our posts:

If the at-fault driver’s insurance company fails to act in good faith to settle the claim within it’s insured’s liability insurance limits, then there is a possibility that it would eventually have to pay any jury award over its policy limits. This situation usually involves a separate bad faith case where the at-fault driver would assign his or her rights to sue his or her insurance company for bad faith.  This may mean you are facing two different lawsuits.

Do You Meet The Requirements To File A Personal Injury Lawsuit?

Initially, you need to determine if you can file a lawsuit against the other driver.  Under the Florida No-Fault laws, not every car crash will meet the requirements for filing a personal injury lawsuit.

Florida outlines certain criteria to be met before you can file an auto accident lawsuit.  You must be able to prove one of the following:

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

Do You Have To Pay Back Your Medical Care Providers?

After an accident, medical bills come in fast and they can really start to add up.  Your Personal Injury Protection (PIP) insurance coverage (further described below) will help cover some of these medical expenses.

However, PIP doesn’t cover everything. It pays 80% of the submitted bill.  The maximum amount PIP will pay on your accident medical expenses is $10,000.00.

If you have bought MedPay Coverage, then the remaining balance after PIP’s payment is covered on the MedPay plan. The amount that is covered depends on your individual policy.

After PIP and MedPay, you can submit your remaining medical bills to your own personal health insurance company.


If, and when, you settle your claim with the at-fault driver’s insurance company, then you will have to negotiate with your medical providers over the costs incurred in treating you for your injuries.

In most instances, you do not get to keep all of the settlement money.

Your insurance carriers (PIP, MedPay, etc.) will exert their “subrogation rights” over the portion of your settlement that reimburses them for the medical treatment they provided to try and make you whole again.

For more, read Do You Have to Pay Back Your Insurance Company After An Accident Claim?

Proving Your Case

The insurance adjuster is not responsible for proving the merits of your claim.  The adjuster will review your claim and do his or her best to limit how much is paid on the claim.  Therefore, it’s important that you fully document your case before you enter into any settlement discussions.

This includes gathering everything you can to prove that the other driver was at fault.  Meaning, you need to show the insurance company that their insured is responsible for the victim’s injuries, therefore they should pay the victim’s claim.

You must also prove your damages.  Every dollar claimed should be supported with evidence as well.

This means getting witness statements, which usually come in the form of sworn affidavits from those who witnessed the accident.

Police reports of the accident can also be helpful to support your claim, along with the reports filed by the EMS technicians.

Additionally, medical records and bills from your doctors will be needed.  These records should include the “prognosis” – how long you will need to fully recover, and what that will involve.  Will you need to be on your back for six weeks or six months?  How long before you can return to work?  What is the level of your permanent disability (usually stated in percentage terms – i.e. 35% impairment)?

Getting Surveillance Video of the Scene

You may also want to get video of the accident if there were cameras at the scene. There are some areas here in South Florida with security cameras and surveillance cameras operating 24/7/365.

You will need to visit the accident site to determine which video cameras might be focused on the location where the crash occurred.  Then, you will need to ask for copies of that video to use in proving your claim.

Police surveillance and government cameras will have different access protocols than privately owned cameras (like those at any shopping mall or big box store).  If the owner or operator of that camera will not allow you free access, you can still obtain a copy.  However, you may need legal help (and a subpoena) in order to do so.

Dealing with Two Insurance Companies

In Florida, victims of an auto accident will have to deal with two different insurance carriers.  This is because Florida is a “No-Fault” State.

What does this mean?  In Florida, there is a law that mandates as a driver, you must carry a minimum of automobile accident insurance coverage and you must file a claim with your PIP carrier after the accident if you desire to receive these benefits.  This is true even if you are not the cause of the crash.

A. PIP Coverage

So, first things first, if you are injured in your car, you will have to file a claim for your Personal Injury Protection or “PIP” coverage.  This covers a maximum of $10,000 toward your injuries and lost wages (the maximum can be limited to $2,500.00 if no “emergency medical condition” exists – and, of course, treatment occurs within 14 days).

Filing your PIP claim has legal requirements, including:

  • You need to see a doctor within a limited time frame (14 days).
  • You need to see a medical provider that is approved under the law (not every health care provider is covered).

For more on PIP coverage, check out our earlier posts including  Can Your Florida Insurance Company Demand Examination Under Oath for PIP Benefits After a Florida Car Crash?

B. Other Driver’s Insurance Policy

The other driver may have insurance that covers the accident that he or she has caused.  If so, you will have to file a claim to get the at-fault driver’s insurance carrier to pay for the injuries you sustained in the crash.

This is a separate claim from your PIP coverage, and it will need to be proven through evidence that shows their policyholder was at fault.

As mentioned above, in addition to proving the other driver was at fault, you will have to prove your damages.

See, Can a Driver Who Causes a Car Crash in Florida Not Have to Pay For Your Injury or Damages?

Want to Know More?

Filing, proving, and settling a Florida car accident claim can be complicated, but individuals can do it successfully.  Since we know how difficult the process can sometimes be, we created a free eBook to use as a guide.  For more details, check out our free eBook here.

What Should You Do About Car Accident Insurance Claim?

In Florida, you don’t need a lawyer to settle your claims after a car crash. However, you may decide that retaining a lawyer will ensure that you recover all of the compensation you are entitled to receive for your injuries.

In fact, in many situations having an experienced Florida personal injury lawyer helping with the preliminary negotiations with the insurance adjusters, as well as finalizing a settlement of your claim, may mean that your resolution is not only faster – but more favorable.

A good piece of advice if you have been injured in a car accident is to speak with an experienced personal injury lawyer before you file a claim to learn about some of the common disputes that can arise with these claims, including the type of evidence needed to prove a claim and 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) 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.



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

Florida Herniated Disk Injury Claims

Posted By on April 20, 2017

In the context of personal injury law, a herniated disk, or slipped disc, occurs when there is trauma and injury to a disk in an accident victim’s spinal column.  They are known to occur in “minor” car accidents like slow speed rear-end collisions and in grocery store slip and falls.

These disks are located between the bones of the spine (vertebrae) and they act as a protective cushion when the spine moves.

A healthy disc acts as a round, flat “shock absorber” for the bones in the spine.  The discs are formed by an outer layer called the annulus, which is filled with a jellylike material known as the nucleus.

As mentioned, it doesn’t necessarily take a great force to harm a spinal disc. In fact, a slipped disc can occur when a disc is pushed slightly.  Many times it can even rupture, allowing some of its cushioning nucleus to escape the disk.  This is known as a “ruptured disk.”



In the image, the herniated spinal disk is shown within the red circle.


What are the Symptoms of a Herniated Disk?

Herniated disks can range in severity.  Some will irritate spinal cord nerves, which can be very painful and can be life-altering.  Others can block nervous system transmissions to the brain, causing numbness in an arm, hand, leg, or foot.  Sometimes, herniated disks can even exist without any resulting symptoms.

When a medical provider is considering an accident victim’s injuries and the possibility of a herniated disk injury, he or she will consider the following signs & symptoms (as described by the Mayo Clinic):

  • Arm pain
  • Leg pain
  • Neck pain
  • Pain in foot or leg when you cough, sneeze, or move your spine into certain positions
  • Numbness in arms, hands, legs, or feet
  • Tingling in arms, hands, legs, or feet
  • Weakness in the ability to walk (stumbling, etc.)
  • Weakness in the ability to lift things
  • Weakness in the ability of the hands or fingers to hold things.

The severity of the injury depends on whether or not the nerves of the spinal column are involved. For example, if the herniated disc is putting pressure on a nerve, then there may be pain,  numbness, or weakness in the use of a hand or foot.

A specific type of pain known as Sciatica can result from a herniated disc. Here, the victim will suffer from pain, burning, or numbness from their buttocks down their leg and into their foot.  This will usually impact only one side of the body.

Treatment for Victims of a Herniated Disk

For accident victims who suffer from a herniated disk, there are a variety of remedies to ease their discomfort and resolve their injuries.  These include:

  • Bed Rest (for first few days)
  • Low Activity (to allow spinal nerve inflammation to decrease)
  • Epidural Steroid Injections for severe pain
  • Nonsteroidal Anti-Inflammatory Medication for moderate pain
  • Opioid Pain Relievers for severe pain
  • Muscle Relaxants
  • Physical Therapy (including stretching, gentle massage, ice and heat therapy, ultrasound, electrical muscle stimulation).

There are a variety of surgeries that may be required to resolve a herniated disk.  These include:

  • Artificial Disc Surgery ( replacement of herniated disc with a manufactured disc)
  • Discectomy (removal or partial removal of disc)
  • Laminectomy (removal of most of the bony arch, or lamina of the vertebra)
  • Laminotomy (opening made to relieve pressure on the nerve roots)
  • Spinal Fusion (bone graft to form union between two or more vertebrae).

Filing a Claim for Herniated Disk Damages

For an accident victim who suffers a herniated disk, it is important to know that those parties responsible for their accident are liable under Florida law for their damages, including pain and suffering, medical expenses, lost wages and other economic and non-economic items.

However, the injured victim must be proactive. A claim for those damages will have to be filed with the person(s) responsible for the crash or fall.

Time Limit on Filing Injury Claim for Herniated Disk

As with all personal injury claims, there is a time deadline on filing a claim for damages in Florida.  The statute of limitations states that the deadline is 4 years from the date the herniated disc injury happened.  Florida Statute 95.11.

If you don’t file the claim by this date, then it is “time barred” and you cannot pursue the claim.

For more, watch: “How do statute of limitations work?

Proving Damages

The victim of a herniated disc will have to prove his or her damages, in addition to proving the defendant’s liability for the accident.

Proving damages can be done using various forms of evidence, including witness statements, medical records from the hospital, a doctor’s written prognosis, interrogatories, video surveillance, etc.

Watch: Can an injury victim recover damages if they don’t have surgery?

However, a herniated disk victim should know that insurance carriers, and their defense lawyers, are biased against herniated disk claims.  See:

Does a Florida Insurance Adjuster Want to Record Your Statement about an Accident or Injury? 10 Things to Know About Recorded Statements by Insurance Adjusters; and

Abusive Insurance Adjusters – Leveling The Playing Field.

Case of the Slip and Fall Herniated Disk Back Injury

In the case of  Ramey v. Winn-Dixie Montgomery, Inc., 710 So. 2d 191 (Fla. Dist. Ct. App. 1998). Mr. Ramey slipped and fell while shopping at a Florida Winn-Dixie supermarket.

Sometime after his fall, he sought medical treatment and was told that he would suffer with back pain for the remainder of his life.  Unfortunately, Mr. Ramey did not have insurance coverage (treatment of a herniated disc can be costly) which is why he delayed seeking medical treatment.

At trial, both the general practitioner and the neurosurgeon provided testimony that his fall at the grocery store caused a herniated disc.  They also joined in his prognosis and stated that the slip and fall accident resulted in permanent harm to Mr. Ramey.

As a result, he would need periodic medical care for this spinal injury for the rest of his life. Meaning, his pain and suffering was permanent.

Winn-Dixie did not dispute this medical testimony.  Moreover, the grocery store did not provide evidence that the injury wasn’t permanent, nor did they refute that the back pain existed and would need treatment for the rest of Mr. Ramey’s life.

They argued against Mr. Ramey being compensated solely because he delayed getting medical treatment.  They defended this by arguing that mysteriously, the passage of time had impacted his injury and increased its severity.

This was disproved by the victim’s medical experts.  Mr. Ramey’s doctor explained that since Mr. Ramey had no medical insurance, and no surplus funds, he was forced to get treatment when and how best he could do so.

Winn Dixie failed to provide any medical evidence that Mr. Ramey’s herniated disc was exacerbated by the delay in getting treatment.   The defense’s argument that he should be denied damages for his herniated disk failed.

Filing a Lawsuit for Herniated Disk Injury

If an accident victim cannot satisfactorily resolve their claim for herniated disk damages, then a lawsuit is the only real option to get justice from the person(s) responsible for the accident.   See, “3 Reasons Why an Injury Claim Becomes a Lawsuit.

In Florida, most personal injury lawsuits settle before going to trial.  However, some injury claims will go to trial which can take years to conclude.

Case of the Doctor’s Rear End Collision and Herniated Disk: The Expert Fight

This is particularly true when experts question the cause of a spinal injury.

For instance, consider the case of Nathanson v. Houss, 717 So. 2d 114 (Fla. Dist. Ct. App. 1998), Here, Dr. Houss was involved in a rear end collision.  The accident was considered a minor crash, with the cars traveling at a very slow speed.

Dr. Houss was stopped in a right-hand turn lane.  The defendant was also stopped in the same lane, and admitted that he allowed the front of his car to collide with the rear of Dr. Houss’ car.

The doctor was hurt in the accident and suffered a back injury.  It was determined that Dr. Houss’s herniated disk was caused by the rear-end accident.

No one disputed that the driver of the rear car was at fault.  However, there was a huge controversy over the injuries sustained by Dr. Houss.

This was confirmed by medical tests and various medical experts.  These medical experts diagnosed and treated him, and also provided testimony at trial.

Regardless of the scoffing of the adjusters and the defense lawyers, Dr. Houss was seriously hurt.  So much so, that preliminary treatment was unsuccessful.  He had to have surgery on his spinal cord.

However, the defense team refused to respect the doctor’s claim even after he was forced to have surgery in order to alleviate his pain and restore his mobility.

First, they argued that he had suffered from a preexisting condition: a degenerative disk.

They also argued that even if it was a herniated disk, that can be caused by everyday activities and not necessarily from the rear-end collision.

They brought forward several medical experts to refute the experts testifying for the victim.  These included an orthopedic surgeon; a neurosurgeon; and a radiologist.  It became a fight between the experts.

Nevertheless, Dr. Houss won his case.  It was found that the evidence he presented supported a reasonable conclusion that the herniated disk existed, and that it was caused by the car accident.

What Should You Do?

If you have back pain after a slip and fall accident or a car crash in Florida, then you may be suffering from a herniated disk caused by your accident.  If so, then those who caused that accident may be liable to you for your damages.

This is true regardless of the resistance you may have received from their insurance adjuster.  Claims adjusters are notorious for discounting spinal disk injuries, particularly when they are the result of a minor accident such as a rear end collision or a slip and fall.

If your doctor believes that you have sustained a back injury, then you need to take steps to protect your legal rights and to assert your claim for damages against those who are responsible for your injury.

A good piece of advice if you have been injured in a car accident or in a slip and fall and have a herniated disc, is to speak with an experienced personal injury lawyer before you file a claim to learn about some of the common disputes that can arise with these claims, including the type of evidence needed to prove a claim and to learn 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) to answer your questions.

We have also provided additional information for those interested in learning more about accident liability.

For more information, check out:

Can Age Affect Settlement Of A Personal Injury Claim?

Did You Delay Seeing A Doctor Because It Didn’t Hurt That Bad At First?: The Case Of The 5 Month Back Surgery Delay


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.

Employer Liability for Distracted Driving     

Posted By on April 6, 2017

What happens when someone is in an auto accident with a distracted driver who is using his or her car for work?  Is the driver’s employer responsible for compensating the victim for their injuries? In Florida, the answer is yes — if certain facts about the car accident are present.


Distracted Driving on the Job

The definition of distracted driving is the same whether or not the at-fault driver was on the job.  The Centers for Disease Control and Prevention (CDC) define distracted driving as “any time you take your eyes off the road, hands off the wheel, and mind off your primary task: driving safely. “

Distracted driving is any kind of activity you undertake while you are driving a motor vehicle.  Whether it is due to eating, reaching for something in the back seat, or texting/ talking on the phone. It is a behavior that takes your focus off of driving, which increases the likelihood of a motor vehicle accident.

For workers who must drive on Florida roads as a part of their job, the causes of a distracted driving accident can be more complicated than for most ordinary drivers. 

For example, someone who is driving their car, truck, or van as part of their job may be more likely to be distracted by things like:

  • Watching the clock because they are concerned about getting to their destination on time;
  • Thinking about tasks and work duties while driving;
  • Fatigue or being tired from working on the job; or
  • Using their phone while driving to check for text or emails from their employer, or customers.

See, Salminen S, Lähdeniemi E [2002]. Risk factors in work-related traffic. Transportation Research Part F 5(1):77-86.

Distracting Driving While on the Phone

The use of cellphones and smartphones while on the job is the biggest concern when it comes to distracted driving accidents, including rear-end accidents.  According to the National Safety Council, drivers are 400% more likely to have a motor vehicle accident if they are driving distracted by using their phone.

This is true even if the employee is using their phone hands-free.  The NSC reports that hands-free devices do not keep people safer; it’s the distraction of communication, not the physical holding of the phone in your hand that increases the danger of a crash.

Florida’s Distracted Driving Law

Currently, the State of Florida does not have a ban on talking on a cellphone while driving. In fact, the only distracted driving phone law currently in effect for Florida drivers is a texting-while-driving ban, which applies to all drivers (even school bus drivers are not legally banned from using cell phones).

What Does Industry Research Say About Distracted Driving?

According to Travelers’ Insurance, employers know very well that distracted driving is a problem that needs to be addressed. In fact, industry research reports have “close to one-third of businesses” reportedly concerned about having their workers driving distracted while on the job. In the same report, 65% of the employers had workers out on the road while using their own personal vehicles.

How Is An Employer Liable For An Employee?

Of course, one big reason that companies are concerned about distracted driving is because of financial liability.  According to the CDC, a non-fatal motor vehicle accident caused by a distracted employee costs the employer on average $72,442.

This is because when an accident is caused by an employee who was driving on the job, then the accident victim can sue the driver’s employer to recover damages, including medical expenses, pain and suffering, lost wages and the loss of the enjoyment of life.

The company who is responsible for that distracted employee can be held liable under two legal theories:

1.  Respondeat Superior

Under Florida law, the legal doctrine of “respondeat superior” exists to make an employer legally liable for the actions of its employee that are undertaken as part of their job or work duties.   If the accident happens while the at-fault driver is in the “scope of his or her employment,” then the employer shares responsibility for the damages its employee causes to a victim.

2.  Negligent Hiring or Entrustment

Florida law will also hold the company / employer liable for the accident damages if the injured victim can prove the distracted driver (the employee) was not qualified to be out there on the job at the time of the crash.  The employer, who is negligent in hiring that driver, or in supervising him as he drove that motor vehicle as a part of his work, can be legally liable for any motor vehicle accident he causes while on the job.

What Type Of Employee Behavior Can Create Liability For The Company?

If the victim can prove any of the following, then the employer may be liable for the accident, including:

  • The employee was texting while driving (obtain cell phone records);
  • The employee was talking on the phone while driving (again, cell phone records);
  • The employee was eating food or putting on makeup while driving;
  • The employee was engaged with the motor vehicle’s information or entertainment system while driving; or
  • The employee was driving after working for an extended period of time (driver fatigue – check driving logs).

Watch: How Do I Prove That A Driver Was Distracted?

What About Insurance?

Most businesses have an insurance policy to minimize the risk of employee caused distracted driving accident.  Some of these policies cover punitive damage awards in these motor vehicle accidents.

Consequently, insurance companies are working with their policyholders to find ways to minimize the risks of distracted driving accidents by employees as well as defenses to these claims.

Internal Company Policies on Distracted Driving

Companies are encouraged to implement internal policies that fight against distracted driving.  These include the following suggestions from the National Safety Council:

1.  Cell Phone Policies for Employees Who Drive While On the Job

Companies should have established policies for their workers.  These cell phone policies should explain the best safety practices for using a phone on the job.  Coverage should include things like the risks of hand-held versus hands-free devices, and discouraging or banning work-related communications while any worker is behind the wheel.

2.  Education and Oversight

Companies should also have training for any employees that are expected to be behind the wheel, as a part of their job.  Training sessions should explain the dangers of distracted driving and how to minimize those risks.

Employers should then monitor and oversee their employees as they are on the road.  Are they in compliance with the company’s distracted driving policies?  If someone calls them while they are driving, is their phone on?  Do they pick up the call?

3.  Federal Government Support for Company Distracted Driving Policies

The federal government is also at work here.  The Department of Transportation has free sample employer policies as well as free memoranda and company news releases for employers to use in setting up internal policies against distracted driving.

Does a Safety Policy Protect An Employer From An Employee Caused Distracted Driving Claim?

Even if the company does have an aggressive safety policy for its employees who drive while on the job, this will not be enough to prevent the employer from being liable for an accident.

Under both state and federal law, companies are responsible for making sure their employees obey all laws – including traffic laws – while on the job.

Appendix A of the National Safety Council’s report on employer’s liability and the case for comprehensive cell phone policies contains a list of federal regulations, state laws, and municipal ordinances that apply to employees using cell phones while driving.

In a motor vehicle accident, even if there is no distracted driving law banned the use of cellphones while driving, the driver may violate other laws including traffic laws for speed limits, crossing barricades or lane markers, failing to brake, failing to keep a certain distance from the car ahead, etc.

Employer Defenses

Most employers who are sued because an employee was driving while distracted will have an insurance adjuster and/or defense lawyer working on their behalf to minimize the financial exposure of their insured for the accident.  They will raise several types of defenses in an attempt to shift all of the risk to the employee.

Company Defenses That Don’t Hold Up

First, they may point to their safety policies and company manuals and argue that the employee was operating outside of company protocols.  In an attempt to escape liability, they may argue they did all they could to prevent the accident from happening and the worker was insubordinate, causing the accident.

Additionally, they may try and argue that the driver was using a personal phone, not one owned by the company.  They may otherwise argue, the driver was on the job, but driving his own car at the time of the crash.  These are defenses that aren’t likely to be persuasive.

Meaning, the company can still be held legally liable for its employee’s negligent or careless driving.

The key issue is if he or she was at work and on the job at the time of the crash.  Legally, this is known as acting “within the scope of his or her employment.”

Viable Legal Defenses To A Distracted Driving Claim

Based upon their years of defending against these claims, an insurance company will raise as a defense the scope of employment doctrine or the plaintiff has failed to meet its burden of proof. They will argue:

1.  The Plaintiff Has Not Proven the Distraction

It is difficult to prove distracted driving.  For example, if the employee was on a company phone at the time of the accident, then company phone records will need to be produced and reviewed to confirm this information. Even if the employee was on the phone at the time of the accident, this fact isn’t conclusive of liability. Another example is if the employee was eating a burger while driving, then the plaintiff will have to prove the distraction by providing photos of the burger wrapper in the wreckage and a time-and-date receipt from the fast food restaurant which shows time proximity to the accident.

Furthermore, the plaintiff will still have to deal with an experienced defense lawyer trying to have evidence excluded, or deemed privileged, as well as arguing the plaintiff failed to meet its burden of proving, by a preponderance of the evidence, that a driver distraction was the cause of the car accident.

2.  The Driver Was Not On the Job

The company will be liable for the driver only if the driver was on the job at the time of the accident.  The defense will likely move to dismiss the claim against the company if there are facts that show the driver was not working at the time of the accident (or not working within the scope of his or her employment).

If the accident happened at ten o’clock at night, then was he or she on the job?  Maybe not if it was a standard workday that ended at five o’clock; maybe so if the driver was attending a work-related seminar or was at night school courses paid for by the employer.

3.  The Plaintiff Was at Fault

In Florida, if the accident victim was partially to blame for the crash, then the damage award will be minimized by that percentage of fault.  If the jury finds that the accident victim was ten percent to blame for what happened, then the total damage liability for the defendants is cut by 10%.

What Should You Do?

When you discover that the driver who caused your car accident was on the job at the time of the wreck, it may not mean that much to you at the time.  That’s because you’re busy dealing with medical expenses, doctor visits, and getting back to work.

However, rest assured that the company and its insurance carrier are working hard to minimize the company’s financial exposure for the accident.  This is true even if they know that the driver was on the job at the time of the accident.

In these situations an experienced Florida auto accident lawyer can help you present your claims for damages against the driver’s employer as well as getting you justice for your harm.

A good piece of advice if you or a loved one have been injured in a car accident where the at-fault driver was on the job at the time of the accident, is to speak with an experienced personal injury lawyer before you file a claim to learn about some of the common disputes that can arise with these claims, including the type of evidence needed to prove a claim and to learn 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) 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.
If you found this information helpful, please share this article and bookmark it for your future reference.