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.

Related:

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

 

 

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

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?

Co-Representation

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.

Spoliation

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.

Self-Authenticating

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.

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

 

 

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

 

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.

Subrogation

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.

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

 

 

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

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.”

 

HerniatedSpinalDisk-NarrowedNerveRoot

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

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

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.

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Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.
 
 
 
 
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Slip and Falls on City Owned Property

Posted By on March 23, 2017

In Florida, slip and falls happen every day whether its due to heavy rain, lack of maintenance, or even substances left on the floor. We all know that businesses such as Publix and Walmart can be held liable for a victims damages, but what if the property is owned by the city?

Does Premises Liability Change if the Government Owns the Property?

If the property owner is a city and/or a recognized municipality in the State of Florida, then different laws apply when determining if it will be held legally responsible for a slip and fall claim.

One such difference is the amount of damages a victim can recover. Meaning, there is a limit, or a cap, on how much in compensation can be awarded to a victim.
 
Seal of Miami, Florida

 

Private vs. Public Owners in a Slip and Fall Case

If you slip and fall on property owned by a private entity, like a shopping center, grocery store, hotel, or unincorporated urban area, then you can seek recovery from the property owner under Florida’s premises liability law. If you win your case, then the amount of damages you can recover from the business owner is, generally speaking, not limited by law.

In contrast, if you slip and fall on property owned by a Florida municipality and suffer identical injuries to the private entity scenario above, then you will not be able to recover the same amount of damages. In fact, unless you follow specific procedures and meet certain deadlines exactly, you may not be able to file a lawsuit against the city at all.

Determining Which City Owns The Premises

The site of your slip and fall accident may happen in an incorporated city, or in a municipality, or in an “urbanized area” as defined by the federal government.

It is critical that you determine exactly what city or governing body owns and oversees the site of your accident and injury. Under Florida Statute 180.01, a “municipality” is defined as “any city, town, or village duly incorporated under the laws of the state.”

You need to know if you fell on a site owned by a legally recognized municipality. You cannot depend upon how things look – rural land can be owned by a city, and a strip center or urbanized area can be found in an unincorporated part of the state.

For instance, the City of Miami Department of Real Estate Asset Management reports that the City of Miami covers approximately 35 square miles with a property inventory “…consisting of approximately 631 parcels inclusive of parks, fire stations, City administrative buildings, public facilities, vacant lots and housing sites.” Additionally, there are places like the University of Miami that may be included as city property for the purposes of a slip and fall claim.

Slip and Falls on City-Owned Property in Florida

So, what can you do if you are hurt in a slip and fall on city property? Here are some things you need to know:

Accident victims can be hurt on government property while visiting a ball park, having a picnic, crossing a street, or walking the dog along a city sidewalk. Injuries can happen due to acts of negligence such as:

  • Cracks in sidewalks
  • Grates or covers in the footpath
  • Changes in elevations of walkways or sidewalks
  • Potholes in streets
  • Puddles of water
  • Slippery surfaces caused by oil or sand
  • Foreign objects (including trash) in the foot path
  • Curbs without adequate warning (paint, markers, signs).

For more on slip and fall accidents, see:

Sovereign Immunity Protects Florida Cities

Cities are not run at a profit; they are financed by tax dollars. Public policy deems cities to be worthy of special legal protection from accident injury claims for damages.

Accordingly, the protections in the law include (1) to protect taxpayers and the public treasury from being held liable for huge injury claims and (2) to insure that the community does not suffer from needed financing because of funds being diverted to pay injury damage awards.

Doctrine of Sovereign Immunity

This is done through the doctrine of “sovereign immunity.” Under the doctrine of sovereign immunity, you cannot sue the government for civil damages. It is legally protected from being held liable for your claim. To learn more about this doctrine, read Article X, Section 13 of Florida Constitution.

However, sovereign immunity isn’t without its limitations. It’s not always fair to block the government from being held financially responsible for an accident that its agents or employees caused to happen.

So, the Florida Legislature has passed a law that provides an exception to this general rule of sovereign immunity.

Florida Statute 768.28

Under this limited waiver of sovereign immunity (stated in Florida Statute 768.28.), cities in Florida can be held responsible for injury or loss of property, personal injury, or death caused by the negligent act or omission of any city employee done within the scope of his or her employment.

Additionally, corporations primarily acting as instrumentalities or agencies of the municipality can be sued for damages, too. This includes places like the University of Miami, as one example. See, Jaar v. University of Miami, 474 So. 2d 239 (Fla. Dist. Ct. App. 1985).

However, before you can proceed with a slip and fall accident claim against a Florida city under this statutory exception to sovereign immunity, you need to know the protocols that must be followed in these cases. (see next section)

Pre-suit Notice

Before a lawsuit can be filed for damages sustained in a slip and fall accident on city property, the accident victim must provide notice to the municipality that he or she intends to file the lawsuit.

Be aware that it must be written on paper. Email notices will not be legally valid. Additionally, it must be sent to the appropriate city office.

If you were injured on a university sidewalk or at a city park, then you need to research and make sure that you are providing notice to the right department or city subdivision. Failure to send your written notice to the right place can end up getting your entire damage claim dismissed.

What does your written pre-suit notice have to state? 

While many city websites (like Miami, see below) provide forms, Jeff Atwater, Florida’s Chief Financial Officer explains “… a narrative letter describing the facts and nature of your claims is usually sufficient.”

The notice should include details about what happened in the incident, with details like:

  • The address and exact location of the slip and fall
  • What direction you were walking
  • What problem (crack in sidewalk, etc.) caused you to slip and fall
  • Witnesses to the event
  • Photos or other documentation of the event
  • Medical documentation and support of your injuries
  • Documentation supporting your damages.

You have a deadline for filing this pre-suit notice, too.   Notice of your accident claim must be made within three (3) years of the event.

Additionally, you cannot file your injury lawsuit for six months (180 days) after the notice is given. However, there is an exception. If the city denies your claim before that deadline, then you are free to file your injury lawsuit.

City of Miami Site Form Examples

For slip and fall accident victims hurt on property owned or operated by the City of Miami, see:

Also of interest, the City Attorney for the City of Miami publishes reports on the status of claims made against the city online.  Check out the accident claims, including wrongful death, filed against the City of Miami and their status in the May 2016 City of Miami Litigation Report.

Limits on Recovery from the City

If you do file a claim against the city, then you have to be prepared for the municipality to reduce your damage claim no matter how valid it may be. Why? There are legal caps on the amount of money that a slip and fall accident victim can recover from a city or municipality in Florida.

Under Florida Statute 768.28(5), cities in Florida cannot be held liable for punitive damages or interest covering the time period before the judgment.  Additionally, actual damages are capped at $200,000.

Meaning, it does not matter how serious your injuries are and the ongoing medical care and treatment you may need.  The sovereign immunity doctrine will apply here and you will not be able to recover any amount of damages over this statutory cap.

Attorneys’ Fees Limitation

The Florida Legislature has determined it best to limit and control the percentage that the plaintiff’s bar can charge clients in sovereign immunity cases.

In Florida, personal injury attorneys usually work on injury cases under a “contingent fee” basis. Meaning, they charge a percentage of any recovery obtained in the case.

However, under Florida Statute 768.28(8), the accident victim’s lawyer is capped on what he can charge his client. Attorneys can earn a maximum fee of twenty-five percent (25%) of the recovery.

This is a much lower percentage that the attorneys’ fees customarily charged in slip and fall cases involving private defendants. As a result, many Florida personal injury lawyers will decline to take these cases against a Florida city or municipality. They will argue it isn’t profitable enough for them to handle.

What Should You Do?

If you have been injured in a slip and fall accident on property owned by a city or municipality here in Florida, then that governmental body may be liable to you for premises liability damages resulting from your accident.

There are special circumstances to consider in your case because the government will be asked to cover your damage claims and that is only allowed by law in certain situations.

An experienced Florida slip and fall lawyer can be very helpful in pursuing your claims for damages and in seeking justice for your harm.  However, not every Florida personal injury lawyer will represent slip and fall victims seeking justice from a city or municipality.

A good piece of advice if you you or a loved one have suffered a slip and fall on city owned property, 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 the type and amount of damages you can recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person) to answer your questions.

You May Also Be Interested In: Frequently Asked Questions on Slip and Fall Claims (The Basics).

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

Posted By on March 9, 2017

Hotels are legally responsible for keeping their hotel guests and invitees safe from harm during their stay.  Florida state law has specific provisions for the hospitality industry.  These laws can be found in Chapter 509 of the Florida Statutes.

Under these statutes, as well as common law, Florida hotels are held to a high standard of care or safety when it comes to protecting their invitees.

For example, if there is an accident in a Florida hotel pool where someone is hurt by another hotel guest in an altercation or a hotel guest slips and falls in their hotel room bathroom or shower, then the hotel may be legally liable for damages and subject to a negligence claim.

Hotel guests and visitors should know that a hotel’s duty of safeguarding its visitors and guests goes beyond providing adequate security, fire safety, food protection and preventing slip and falls.  Even measures like properly securing chemicals or monitoring chlorine levels in a pool or spa are included in their duty of care.
 
The Peninsula Bangkok Pool
 

Hotel Swimming Pool Injuries from Chemicals

Hotel owners and operators also have a duty to use pool chemicals in order to keep hotel guests safe from serious infections and illnesses caused by bacteria that would otherwise grow in the standing water of a hotel pool.

Pool Chemicals Can Be Dangerous

Pool chemicals often cause injuries because of improper use and storage.  People can become sick and seriously injured from pool chemicals especially when (1) incompatible products are mixed together; (2) chemicals are spilled or sprayed; and/or (3) fumes escape from a chemical container.

See, “Acute Illness and Injury from Swimming Pool Disinfectants and Other Chemicals United States, 2002-2008,” published by the Centers for Disease Control and Prevention in October 2011.

Pool chemical injuries can include respiratory problems; damage to the eyes; and skin injuries.  Some of these injuries can be serious and even life-threatening.

Hotel Pools May Look Safe But Beware: CDC Statistics

The Centers for Disease Control and Prevention (CDC) monitor the health and safety of public pools, including hotel pools and compile their research into annual reports. From the CDC data we know:

  1. Over 10% of Open Hotel Pools May Need to Be Closed For Public Health SafetyAlmost 1 in 8 (12.1% or 13,532 of 111,487) routine pool inspections conducted during 2008 identified serious violations that threatened public health and safety and resulted in an immediate closure.
  1. More than 10% of Public Pools Have the Wrong Levels of Chlorine: More than 1 in 10 (10.7% or 12,917 of 120,975) routine pool inspections identified pool disinfectant level violations.

Pool Shock

One example of hotel safety concerns for guests is the common practice of tossing high amounts of chlorine all at once into the swimming pool.  This process is called pool shock.

Why do this?  Florida is an inviting environment for bacteria to grow, and keeping it at bay is a constant fight here. Often, hotels will put extra chlorine into their swimming pools to kill off the rapidly growing bacteria.

Hotels should not allow swimmers to enter the pool or pool area during pool shocking. Anyone who wades into the swimming pool during the shocking process will be exposed to high levels of chlorine.  They may suffer from respiratory problems, or even burns on their skin as a result.

There should be warning signs and other protective measures taken during any pool shock.  Failure to warn and failure to keep swimmers out of the pool area during a pool shock may be the basis of an accident claim.

Most Common Pool Chemical

The most popular pool chemical is chlorine.  It comes in the form of chlorine chalk tablet, liquid, or powder.  They release and disperse the chemical into the pool water.  The chemical kills bacteria in the pool that might be harmful to humans, like giardia and e. coli.

However, chlorine is a toxin. Meaning, it is poisonous to humans.  The trick is balancing using enough chlorine to kill bacteria but not so much that it can harm the humans swimming in the pool water.

Recreational Water Illnesses (RWIs)

Swimmers who are harmed from swimming in a hotel pool may suffer something experts call a recreational water illness, or RWI.   Here, the swimmer is harmed by chemicals in the water itself, either by absorbing the chemical into his or her skin or by swallowing some of the tainted water.

RWI can also be caused by chemicals that have evaporated from the pool into the air.  In this case, those in and around the pool may be harmed by inhaling chemical fumes.

RWIs are usually considered minor injuries.  The CDC reports diarrhea as the most common complaint of RWIs, but victims can suffer from gastrointestinal, skin, ear, respiratory, eye, neurologic and wound infections.

However, recreational water illnesses can be serious.  When a hotel guest is exposed to chlorine at the hotel swimming pool, they may suffer from severe harm (including death).

Chlorine Poisoning

Chlorine can poison you and it can cause serious damage to the respiratory tract if it is inhaled.  It is a toxin that can permanently harm or even kill you if swallowed.

Here’s an example of how dangerous chlorine can be: it was used in World War One as a weapon of poison gas.  Chlorine has also been reported by the New York Times to have been used as a chemical weapon in Syria in 2015.

1.  Inhaling Chlorine Gas Vapors

How is it lethal?  If there is too much chlorine in the swimming pool, the chlorine gas will collect on or near the water’s surface.  Chlorine is heavier than air.  Swimmers who breathe in the chlorine gas can be injured.

Extremely high levels of chlorine in swimming pools can release gas off the surface, and cause chlorine poisoning.  You cannot readily see the gas vapors, and by the time you realize that you smell something unusual (chlorine has an odor similar to bleach), your system may already be compromised.

2.  Swallowing Chlorine in Pool Water

Chlorine is a powder, liquid, or solid that reacts with water and turns into gas. It also happens when someone swallows chlorine in a pool.

As Healthline explains, chlorine will react with the water in your digestive tract just as it does with the water in the swimming pool.   Chemically, when chlorine turns into a gas it forms both hydrochloric acid and hydrochlorous acid.  Both are toxic to humans.

This means that swimmers who are exposed to chlorine in its solid powder form at the pool and swallow it are vulnerable to serious injury.  Swimmers that swallow water with excessive amounts of chlorine gas in it are also at a high risk of bodily injury form chlorine poisoning.

Symptoms of Swimming Pool Chlorine Poisoning

According to the CDC, symptoms of chlorine poisoning from a hotel swimming pool can include:

  • Nausea
  • Vomiting
  • Burning in throat
  • Itchy and watery eyes
  • Dull pain in chest
  • Difficulty breathing
  • Shortness of breath
  • Blurred vision
  • Blisters on the skin

Long Term Damage from Chlorine Poisoning

If someone breathes in a large amount of chlorine or high concentration of chlorine gas, then he or she may die from the poison.  Survivors may suffer permanent harm to their respiratory system.  This includes pulmonary edema (fluid in the lungs).

The Mayo Clinic advises that pulmonary edema can develop suddenly (“acute pulmonary edema”) and may cause death if there is not fast medical treatment.  However, if emergency treatment is provided, then the prognosis is better.  It is possible to recover from pulmonary edema caused by exposure to chlorine at a hotel swimming pool.

Additionally, chlorine exposure from inhaling or swallowing chlorine can damage your circulatory system.  Chlorine exposure can also permanently harm your eyes and vision.

Chlorine Burns

If there is too much chlorine in the pool water, the swimmer’s skin can be exposed to the chemical.  The chlorine gas can also damage skin tissue.

Chlorine is a chemical that can burn the skin just as an open flame can cause a burn.

Also, when skin comes into contact with high levels of chlorine in the air near the pool, a chemical burn can result.  Chlorine gas can also cause a chemical burn, even if the hotel guest never enters the pool water.

Steps to Take After Hotel Pool Chlorine Chemical Burn

Those who experience a burn while in a hotel swimming pool should be quick to exit the pool and the pool area.  They should strip off their clothing and safeguard it for testing later, along with any towels, shoes, etc. that they had poolside.

Next, it is recommended that chlorine burn victims shower with cool or cold water for an extended time.  Soap can be used to remove the chlorine from the skin surface.  Medical treatment should be sought.

What Kind Of Damages Can Be Recovered In A Chlorine Injury Claim?

We have spoken about the different types of injuries a victim may suffer due to overexposure to chlorine. Now, if you or a loved one have suffered injury due to a hotels negligent maintenance and regulation of the chlorine levels in the swimming pool, you may file a claim against the business. If you or the victim chooses to do so, there are a variety of damages one can receive if their injury claim prevails.

These can include economic and non-economic damages. Economic damages are those that can be tallied through invoices such as hospital bills and medical equipment, or through calculations of money lost over time such as lost wages. Non-economic damages are those related to pain and suffering and loss of the enjoyment of life, that aren’t set money values and must be calculated by weighing factors such as time, level of pain, and the recovery process, to name a few.

Read more: Economic vs Non-Economic Damages

National Capital Poison Center

If you or a loved one suspect you have been injured by chlorine, then you can call the National Capital Poison Center at any time (day or night) for free advice.  Experts there can confirm if you are suffering from exposure to chlorine and how best to get immediate medical treatment for chlorine exposure.

The NCPC phone number is toll-free (1-800-222-1222) and there is no charge for contacting them.

What Should You Do If You Are A Victim Of A Hotel Chlorine Injury?

If you have been injured by chlorine at a Florida hotel swimming pool or spa, then the hotel owner and operator may be obligated to compensate you for your damages, including your pain and suffering.

A good piece of advice if you you or a loved one have suffered from exposure to chlorine at a Florida hotel swimming pool, 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 the type and amount of damages you can recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person) to answer your questions.

You May Also Be Interested In:

Florida Hotel Guests and Hotel Injuries: Do Hotels Consider their Duty to Provide Safety and Security as “Risk Management”?

Hotel Accident Claims: Hurt in the Hotel Pool

Can a person entering a hotel to use the swimming pool without authority change their status from trespasser to invitee by befriending or conversing with hotel guests?

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

Posted By on February 23, 2017

In Florida, when an injury victim opts to negotiate a personal injury claim with the insurance company on their own, he or she needs to be prepared to deal with sophisticated adjusters who strive to keep settlements as low as possible.

Insurance adjusters are trained to negotiate settlements in the insurance company’s favor. This means that a victim will likely be in a position of unequal bargaining power. That discrepancy of bargaining power is what usually leads to a dispute when it comes to a personal injury settlement.

To help level the playing field between accident victims and insurance companies, we created a free guide for those Florida accident victims who wish to negotiate their insurance claim on their own.  You can download our free e-book on settling a Florida personal injury claim without a lawyer here.

 

Car-accident

 

Common Reasons Why The Parties Disagree and Are Unable to Settle a Florida Accident Claim

For an accident victim, preparation, organization and honesty are the keys to settling a personal injury claim on their own.  Knowing in advance some of the common issues that may surface in a settlement dispute can be very helpful.  In our experience, you may run up against the following:

1. Causation

One of the most common disputes an insurance adjuster will use is regarding causation. So, a question you will have to ask yourself is, “what caused the car crash, or the slip and fall?”

As the claimant, you will not only have to provide proof of the accident, but also provide proof of what caused the accident to occur. By providing convincing evidence of causation, you will have a better claim against the insurance company and the at-fault party.

For more information, read: What is Concurrent Causation?: Determining Who Pays Damages For Your Injuries When More Than One Person is Negligent

2. Fault

After you have established the cause of the accident, the next question from the insurance company will involve fault.  Who was at fault?  Who caused the car crash, or slip and fall accident?

Your claim will need to explain why their policyholder is at fault for the accident.  Facts will need to be presented to show that their policyholder made a mistake that ended with you being injured.

In legal terms, you will need to show that their policyholder had a (1) legal duty to you that (2) was breached and (3) caused your harm.

What you need to do here will depend upon your type of accident.  Car crashes will be treated differently than slip and falls, for instance.

Also, expect a dispute over whether or not your own actions caused, or contributed, to the accident.  The insurance adjuster may argue that you were at fault, at least partially.  This will lessen the amount of damages that the insurance company will have to pay on your claim.

In Florida, this legal concept is known as comparative fault.

For more, read:

Fault, Blame, and Damage Claims: Contributory Negligence in Florida

Does Fault Impact Damages in a Florida Car Crash?

a.  Premises Liability

Slip and falls in Florida are also known as “premises liability” claims.  Florida’s premises liability law imposes legal duties upon business or property owners.  

For example, the owner or operator of the property where the slip and fall occurred has a duty to keep the premises reasonably safe for invitees, clients, customers, and guests (the duty owed to an invitee varies depending on what caused the slip and fall – was it because of a transitory substance on the floor of a grocery store?).

Disputes often arise as to the duty owed to the victim as well as whether or not the business owner acted reasonably and/or had knowledge of a dangerous condition.

See our related posts:

How Do You Know If A Business Acted Reasonably In Trying To Prevent an Office Slip and Fall Accident?

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

a.  Car Accidents

Often, in car accidents the insurance company will dispute who caused or who was at fault for the accident – it is important to know how an insurance company determines whether or not a driver was acting reasonably at the time of an accident.

For more, read our posts including:

How Do You Know If A Driver Acted Reasonably In Trying To Prevent a Loss of Control Car Accident?

How Do You Know If A Driver Acted Reasonably In Trying To Avoid A Rear End Car Accident?

3. Amount of damages

Accident claims consists of two parts: (1) liability and (2) damages. To prove liability, the victim must show the policyholder was responsible or at-fault for the accident. To prove damages, which is the compensation a victim receives to make them whole again, the victim has to provide documentation and, in some instances, expert testimony.

Damages are legally defined under Florida law. When a victim files their own accident claim, they should know what damages are recoverable, which can be economic or non-economic in nature.

The insurance company may dispute your claim by saying that you were not hurt as bad as you say you are or that you were not hurt at all.

For more, see our related articles:

4 Factors Used To Determine The Amount of Damages Suffered By An Injured Car Accident Victim

Who Pays for Damages In a Florida Traffic Accident When The Driver is On the Job?

4. Medical treatment

It’s important to get medical treatment after you have been injured. That should be your first priority. However, be aware that claims for certain kinds of medical treatment may be disputed.

For instance, where you go for medical care may be an issue. Different kinds of health care professionals are treated differently under our personal injury laws. For example, chiropractors may be of great help to your injury, but there may be a limitation on the amount or type of treatment you can receive under certain insurance policies.

Moreover, you may have a time deadline to seek treatment.  In a car accident, under Florida’s PIP law, a car accident victim has a 14 day deadline to seek medical treatment.

For details, read our posts about:

Florida Car Accident Compensation Law

Florida Personal Injury Lawsuit Risks

5. Certain damages are not covered under the policy

Insurance policies do not cover every type of harm that can happen in an accident. The sad reality is that accident victims may face having losses that will not be covered by the person responsible for their injuries.

For instance, your economic damages may not be covered. These are things like the EMS bill, your doctor expenses, and the tab at your local pharmacy. For example, having surgery done on your shoulder after a car accident may have greatly improved your shoulder injury, but an insurance adjuster may argue that the surgery wasn’t necessary.

Other losses, called non-economic damages, may not be covered.  These are things that usually don’t have corresponding invoices.  The most commonly known non-economic damage is pain and suffering. Also, victim can collect “loss of enjoyment of life” damages for not being able to attend his or her son’s graduation.

Non-economic damages are just as real to a victim, but insurance companies usually have limits or exclusions regarding these damages.

For more, read our posts including:

What Kind of Florida Personal Injury Money Award Can You Expect To Receive if You Are Injured? Economic vs Non-Economic Damages

How Do You Recover Emotional Distress Damages in Florida?

6. High medical bills

Doctors set their fees and hospitals can charge a high price because both are in business to make a profit. Your claim must include all your medical expenses if you want them to be covered by the insurance claim. However, insurance adjusters are not interested in the reasons that your surgeon set his or her rate at a high amount. Insurance companies have their own way of looking at health care charges. Because of this, you may have a huge fight on your hands over whether or not that bill should be paid, and if so, how much will be covered.

For example, one of the most common injuries that arise out of a slip and fall are ankle injuries. These include breaks, sprains, fractures, and even pain. The cost of doctors visits, treatment, and pain medication add up quickly and may be devastating to a victim who is forced to incur these expenses. Knowing how to handle a dispute with an insurance adjuster who is trying to avoid compensating a victim for his or her treatment can make a huge difference to the outcome of the claim itself.

Additionally, insurance companies have comparable charges in your area for the health care services you received. If your claim is much higher than those comparables, expect a challenge to that claim item. Hint: talk to the business office of that physician, clinic or hospital. They may be able to help you deal with the insurance adjuster and get the bill amount respected and paid.

For more, watch:

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

What is the best accident claim advice that I can share?

7. Reasonableness of medical bills

The amount of your medical expenses will be reviewed by the insurance adjuster.  So will the procedures that have been coded and billed by the medical provider.

These items will be evaluated to answer questions such as: “Was the charge reasonable for your area?” and “Was the expense reasonable and necessary?”

Insurance companies use sophisticated software programs to analyze accident claims. Not only will the type of procedure be considered for reasonableness, but also the area and location in which it took place. Reasonable fees for a procedure in Miami-Dade County may be much different than in Orlando or in Tampa.

The insurance company may only want to pay what it deems appropriate based upon its own internal company determinations, so you may have a dispute over the reasonableness of the amount charged by your health care providers.

For more, see:

Colossus and Xactimate: Did You Know That Big Insurance Companies Use Software Programs To Decide How Much Your Injury Claim Is Worth? [Evaluating Your Car Crash Claim or Slip and Fall Injury Case Part 1]

What are Independent Medical Examinations (IME) and How Do They Relate to a Florida Damage and Injury Compensation Claim?

8. Insurance Company Bad Faith

Under Florida law, insurance companies are held to a legal duty to act in good faith in the settlement of accident claims. Of course, the reason that the law has imposed this duty upon insurance carriers here in Florida is because they were denying valid accident claims in bad faith just to save company money.

If you believe that your accident claim was denied wrongfully, then you may have a new legal action to consider.  You may have a lawsuit based upon “bad faith” by the insurance company.

Bad faith legal actions are independent of accident claims. They are civil lawsuits filed against the insurance company for an intentional bad act.

For more on bad faith insurance claims, see our posts:

Abusive Insurance Adjusters – Leveling The Playing Field

How Do You Know If Your Settlement Offer From the Insurance Company is Fair? Have You Considered All of The Factors Involved in a Florida Damages Claim?

9. Questioning Claims for Back Injury Damages

Often, serious accidents result in back injuries. The human body is vulnerable to spinal cord injuries, as well as injuries to the spine itself, such as herniated discs. Less severe injuries can also be very painful and long-lasting; these are called “soft tissue injuries.”

Unfortunately, insurance companies are skeptical of back injury claims. If your accident claim involves a back injury, then you need to be ready for a dispute over the validity of your claim and the extent of your harm.

a. Did accident cause the back problem – didn’t show up right away

One common dispute involving accident claims based on back injuries happens when the back injury does not reveal itself at the time of the accident.

The human body is complicated; sometimes, an accident victim may walk away from the accident scene thinking they haven’t been hurt badly. Weeks or even months later, the back injury reveals itself.

When a back injury is delayed onset, it is likely that the insurance adjuster will argue that the accident was not the cause of the harm (also known as “delayed-onset injuries.”)

Medical experts may be needed to provide their explanation in support of your claim. Back surgeons and other health care providers who work with spinal injuries are well versed in insurance company attitudes to back injuries.

For more, read:

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

Delay in Doctor Visit: Waiting to See a Doctor Can Be Used Against You

b. Causation dispute especially if there is back surgery involved

Another common dispute between accident victims and insurance adjusters in back injury claims involves causation. When there is a prior back surgery, then the claim may be dismissed or denied under the argument of “pre-existing condition.”

Again, the opinion of medical experts can be very important here. A past back injury may have nothing to do with the current back injury that was caused by the accident. Your doctor may be able to clarify the distinction and get your claim paid.

Read: Can a Pre-existing Condition Hurt Your Accident Claim?

What Should You Do If You Have A Dispute Over Your Personal Injury Claim?

Attorneys can be very helpful in negotiating with the insurance adjusters simply because most experienced personal injury attorneys can tell you how most insurance companies respond to an injury claim and they can share their past experience in dealing with an individual company or adjuster.

Also, if the victim and the insurance company cannot resolve their differences about causation or the value of a claim, then a victim may be best served by having a personal injury trial lawyer file a lawsuit and present their case to a jury.

A good piece of advice if you have a personal injury claim and are trying to settle the claim on your own, 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 the type and amount of damages you can recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person) to answer your questions.

You May Also Be Interested In:

How Much Money Can You Expect From Your Florida Car Crash Claim? Try Our Car Accident Compensation Form

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

 

 

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