Florida Restaurant Laws     

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Florida statutory laws can be used to find a restaurant owner negligent, and therefore responsible to compensate a victim for his or her injuries.

Based on the theory of negligence, anyone injured inside a restaurant or outside within its property lines may have a case against its owners and operators for personal injury damages.

In the State of Florida, a claim for negligence requires an injury victim to prove four (4) legal elements with admissible evidence:

  1. the defendant’s duty of care to the plaintiff;
  2. the breach of that duty;
  3. this breach was the proximate cause of the accident; and
  4. the victim was harmed as a result.

See:  Negligence Lawsuits in Florida

However, if a plaintiff can show that a restaurant owner or operator violated any number of statutes, then the victim may be able to argue that a violation of the statute is in of itself evidence of negligence. This may eliminate the need to prove the above 4 elements to prevail in their injury claim.

 

Clubhouse Dining

 

Accident Claims Based Upon Florida Restaurant Statutes

For those injured in an accident on the premises of a Florida restaurant, the following safety and welfare statutes governing the restaurant industry here may establish a negligence claim and assist with the recovery of damages.

1.  Proper State Food Service License; Food Standards And Requirements

See: Florida Statute 381.0072

Florida restaurants must be licensed by the state to serve food and drinks to their patrons.  This is the license given to all “food service establishments,” no matter their size or location.  The license must be current, and this law defines what is required to get (and keep) a restaurant license to operate.

This law also defines the duty of care for the restaurant to never serve food that is unfit for human consumption.  The food service establishment also has a defined legal duty to never knowingly and willfully misrepresent the identity of any food or food product to any of the patrons.

2.  Training Of Restaurant Employees

See: Florida Statute 509.049

Florida law sets up the particular kind of training that everyone working at a food service establishment must have before beginning work at the restaurant.  This is for public safety reasons.  This statute also defines the duty of each restaurant to designate someone to provide the training (this person, usually a restaurant manager, must be certified to do so).

Additionally, this statute requires that all the restaurant’s employees finish their training within 60 days from the date they are hired.

The training is good for three years and must comport with a state-approved food safety training program.

3.  Protecting Patrons From The “Undesirable Guest”

See: Florida Statute 509.141

Florida legislation requires the restaurant operator to be alert to certain kinds of guests who pose a risk to the other patrons.  The management must remove this “undesirable guest,” or to take steps to have them removed (e.g., calling the police).

Who is an “Undesirable Guest” in a Florida Restaurant?

Under the statute, these guests must be on the premises of the establishment before this duty of care applies to the restaurant.  They are defined as anyone:

  • illegally possessing or dealing in controlled substances as defined in Florida Chapter 893;
  • drunk or intoxicated;
  • using profane or lewd language;
  • fighting or brawling;
  • indulging in “any language or conduct which disturbs the peace and comfort of other guests,” which is a separate type of conduct from swearing or using profanity;
  • indulging in “any language or conduct … which injures the reputation, dignity, or standing of the establishment”;
  • who does not pay for food, beverages, or services;
  • anyone whose “continued entertainment of whom would be detrimental to such establishment,” as long as this is not discriminatory (e., based upon race, creed, color, sex, physical disability, or national origin).

The duty of the restaurant is to (1) notify the undesirable guest that the establishment no longer “desires to entertain the guest,” and (2) request that he or she “immediately depart.” from the establishment.  If the notice is given in writing, the statute includes specific language that must be included in the document:

“You are hereby notified that this establishment no longer desires to entertain you as its guest, and you are requested to leave at once. To remain after receipt of this notice is a misdemeanor under the laws of this state.”

This is a serious legal duty, to police the premises on behalf of the patrons.  The statute mandates that any guest who remains or attempts to remain in any such establishment after being requested to leave by the restaurant management is guilty of a misdemeanor of the second degree as provided in Florida Statutes 775.082 – 083.

This means that the restaurant management must call the police if the “undesirable guest” refuses to comply with the notice to depart.

4.  Protecting Patrons From Choking

See: Florida Statute 509.213

Under Florida law, every food service establishment must post an Emergency First Aid Sign for Choking.  It must (1) illustrate visually and (2) describe in words how to perform the “Heimlich Maneuver” to someone who is choking.

The restaurant employees must be ready to render emergency first aid to any choking victim who is (1) in a “conspicuous place” in the establishment that is (2) accessible to the employees.

Florida restaurants have a legal duty to train and familiarize employees with the Heimlich Maneuver method of first aid.

However, there is a specific limitation on this duty in the statute.  The law states that it cannot be read to impose upon a restaurant or its employee a legal duty to render emergency assistance.

The law also states that neither the establishment nor its employee shall be held liable for any civil damages as the result of such act or omission, when the establishment or employee acts as an “ordinary reasonably prudent person” would have acted under the same or similar circumstances.

5. Protecting Patrons From Fire

See: Florida Statute 509.2151

Under this law, there is a legal duty to have sprinklers in place to fight a restaurant fire and protect patrons (and employees) only if the establishment has a fire area occupancy load of 200 patrons or more in its dining area.

6. Protecting Patrons From Contagious Disease

See: Florida Statute 509.221(8)

If any worker at the restaurant gets sick, the restaurant has a legal duty to make sure they stay home until they are well.  It includes any waitperson, busboy, hostess, etc., who may have a boil or sore on their hands, arms, or feet.

Specifically, under the law this applies to anyone “suffering from any contagious or communicable disease, while a carrier of such disease, or while afflicted with boils or infected wounds or sores.”

This employee cannot work at the restaurant in any task or job where there is a chance that his or her disease could be transmitted to others.   This is a legal duty placed upon the restaurant.  Along with it is a duty to notify the proper state or local health authority if the management thinks the employee is so ill as to pose a public health risk (which arguably extends this duty of care way beyond the patrons and employees).

7.  Protecting Patrons From Unsanitary Conditions In Restrooms And Toilets

See: Florida Statute 509.221( 1)(b),(2)(a),(5)

Under Florida law, all restaurants and “food service establishments” must have potable water supplied to the premises, with a plumbing system meeting the requirements of the Florida Building Code.

This duty also means that the restaurant must provide adequate “sanitary facilities” for the employees. This includes things like sinks and handwashing basins, as well as restrooms and toilets. If the type of establishment means the employees need a shower on the premises, then the restaurant has a legal duty to provide one.

As for restaurant patrons, there must be separate public bathroom facilities that comply with the Florida Building Code.  They must be approved by the local building authority.

Each food service establishment shall provide soap, as well as clean towels or other approved hand-drying devices, in both employee restrooms and bathroom facilities designated for the patrons.

This statute also extends this legal duty imposed upon the restaurant to the underlying sewage system for the establishment.  Under this law, the owner or operator must make sure that the restaurant’s wastewater or sewage is properly treated onsite, or discharged into an approved sewage collection and treatment system.

8.  Protecting Patrons From Heat And Darkness

See: Florida Statute 509.211 (3)

All Florida restaurants must have proper utilities provided for their guests.  Under this Florida Statute, the food service establishment shall be properly:

  • Lighted
  • Heated
  • Cooled and
  • Ventilated.

Moreover, there is an overall legal duty imposed here that the restaurant must be operated with “strict regard to the health, comfort, and safety of the guests.”  In the law, that single word “strict” brings a great responsibility upon the restaurant: it makes this a primary responsibility for the owner and operator.

Making sure that there is enough light for the guests to see is given special consideration.  The statute makes it clear that “….proper lighting shall be construed to apply to both daylight and artificial illumination.”

Read: Slip and Fall Accidents and Inadequate Lighting

9.  Protecting Patrons From Vermin

There is a specific Florida statute dealing with vermin and food service establishments.  The operator must take “effective measures” to make sure that the restaurant is protected from (1) the entrance and (2) the breeding on the premises of all vermin.  If any vermin are discovered, then the duty extends to having the establishment fumigated, disinfected, renovated, with other corrective action as needed until the vermin are exterminated.

The word “vermin” is not defined in the law itself.  Under the Florida Pest Control Act, “vermin” are distinguished from “rodents” and arguably, “vermin” can include any animals or insects known to carry disease, such as rats, cockroaches, or fleas.

Federal Statutes Creating Legal Duties For Florida Restaurants

In addition to state laws (and local ordinances), there are several federal laws that apply to public accommodations and may arise in a Florida accident claim filed by someone who has been hurt or injured in a Florida restaurant.  These include:

10.  Americans With Disabilities Act

See: ADA.GOV

The Americans with Disabilities Act (ADA) is civil rights legislation enacted by Congress in 1990 (and amended in 2008) to protect the rights of disabled Americans by outlawing, among other things, the exclusion of people with disabilities from enjoying a meal at a local restaurant.

This includes patrons who use mobility aides like wheelchairs, scooters, canes, or walkers, as well as those needing service animals.

Under the ADA, restaurant owners and operators have the duty of care regarding disabled patrons the following:

1.Insure there is adequate room to move and travel through:

  • Seating areas
  • self-serve stations
  • ordering and pick-up counters.

2. Making sure that dining areas have:

  • accessible seating for patrons with mobility aides (wheelchair, scooter)
  • accessible areas for patrons with service animals.

The ADA defines an “accessible table” as a  table-top surface that is no higher than 34 inches above the floor with clear space underneath at least 27 inches high (so those using wheelchairs can get their feet and knees under the table).

Note:  There can be overlapping duties of care here. Under the ADA, the restaurant must ask the owner’s permission before moving a mobility device to an area that is safely out of the way for other patrons as well as wait staff to pass by the disabled patron’s table.

Slip And Falls On Restaurant Premises

See: Florida Statute 768.0755

The Florida Legislature has passed a specific law that controls all accident cases based upon slip and fall accidents (or trip and falls) that happen on restaurant property.  This is the Florida Premises Liability law governing “transitory foreign substances in a business establishment.”

We have discussed the specifics of this premises liability law in detail and how the “negligence” doctrine operates in Florida restaurant slip and falls here:

What Type Of Legal Duty Does A Florida Property Owner Have For Injuries To Visitors?: Florida Premises Liability- Invitee, Licensee, Trespasser Distinctions

What Should You Do?

If you or a loved one has been hurt in an accident in a restaurant property or on the surrounding premises, then an experienced personal injury attorney may be of great help.

First, it can be advantageous to have a Florida personal injury lawyer help you make a demand for damages to the restaurant owner or operator.  Knowing which documents and what information to include in your demand letter can save a lot of time and effort when dealing with an insurance adjuster. This is particularly true if the restaurant is a franchise or part of a chain that has significant past experience in negotiating injury claims.

If necessary, a Florida personal injury attorney can also file a personal injury lawsuit based upon the restaurant’s breach of its duty to care to you to force the restaurant to turn over any internal reports related to your accident as well as any video surveillance.

Therefore, a good piece of advice if you have a question about Florida’s restaurant laws and their application to a negligence claim, is to speak with an experienced personal injury lawyer to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and knowing how most insurance companies respond to these claims. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

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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.

Settle Your Injury Case or File a Lawsuit: What’s Best for You?

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Accident victims in Florida are protected by our state personal injury laws, which are designed to hold those responsible for harmful their actions.  Negligence based laws protect car accident victims, and premises liability laws help those hurt in slip and falls at places like a grocery store or hotel bathroom.

The Accident Claim Process: How Does It Begin?

Seeking justice for a victim begins by making a written demand to the responsible party (or their insurance company).  That demand letter can include requests for compensation to cover medical costs, lost wages, therapy expenses, pain and suffering, property losses, and other economic and non-economic losses.

Once the demand has been made, then the process moves forward with the negligent party’s insurance adjuster or defense lawyer.  Often times, the claim is resolved during this demand period.

For instance, if liability is clear and the damages are not disputed, there may be a quick settlement of the claim.  However, many claims are contentious.  In these situations, the insurance adjuster will drag his or her feet because liability or damages is in dispute.  Insurance is big business and they are not in business to lose money, even though a victim is just trying to be made whole again.

Resolving The Accident Claim

Unfortunately, when a victim is unable to settle their claim on their own, there only real option is to hire a personal injury lawyer to help with negotiating their personal injury claim or to file a lawsuit on the victim’s behalf.

The good news is that an experienced accident attorney can tell a victim if the settlement offer he or she received is fair or if it is a lowball offer. (Low ball offers are often made by insurance companies because they know some victims are eager to settle right away.)

Of course, the ultimate decision of whether to settle or file a lawsuit, is not for the lawyer to make.  The claim belongs to the victim, and it is his or her decision to make. Because of this, many questions come to the victims mind, like “how do I know if I should accept this offer?” and “What information do I need to make this decision?

 

Issues To Consider When Deciding Whether To Settle Your Personal Injury Claim Or Sue

Here are several issues every injury victim should consider when deciding whether to settle their claim or sue after a personal injury occurs:

1.  If You Settle, You Avoid Stress And Being Re-Victimized

If you settle the claim without filing a lawsuit, then you free yourself and your loved ones from the time and stress caused by court, court related proceedings and evidentiary issues, including:

  • locating witnesses to testify (who often times don’t want to be bothered),
  • going through the discovery process such as being questioned under oath at a deposition or answering interrogatories,
  • the lengthy process that litigation typically brings, including cancelled hearings, rescheduled trial dates and jury selection.

Also, when a lawsuit is filed, the victim and the victim’s lawyer will need to spend much more time on the case because the formal procedural rules of civil litigation will come into play.  There are discovery deadlines and formalities to follow.  The lawyer must pursue proving the case with admissible, authenticated evidence. Settlement negotiations pre-suit, on the other hand, are more informal.

For instance, a witness statement may be sufficient in settlement negotiations.  Once the lawsuit is filed, the statement may no longer be sufficient, and a formal deposition may be needed.

Furthermore, most accident victims find that the accident aftermath is overwhelming enough without having to deal with defense lawyers and judges. The claim and litigation process can be difficult.  No victim wants to be re-victimized by an insurance company or a defense lawyer.

2.  If You Settle, You Get Paid Faster

If you settle your claim for damages before filing a lawsuit, then you will receive your money right away. Many accident victims find this to be the better option, even if the settlement offer is lower than they anticipated, because the victim will be able to pay off pending medical bills and vehicle repairs sooner than if they were to file a lawsuit.

The litigation process can take months or even years to conclude, and if there is an appeal of the jury’s verdict or the trial judge’s rulings, then the process will take even longer.  Closure through a settlement may be the better course to take for the victim and his or her family, given this reality.

3.  If You Settle, It’s Cheaper

Personal injury lawsuits can be expensive.  If the victim proceeds to litigation, he or she will need a higher settlement offer just to net the same as the pre-lawsuit offer in order to cover those additional litigation costs and attorney’s fees.

For example, there are court filing fees to file the complaint (in Broward County, the 2018 fee for filing a new lawsuit in civil court is $401.00 – see the Broward Clerk of Court’s Fee Schedule), process servers, expert witnesses, court reporters, and the testimony from doctors who will charge hundreds of dollars for each hour of their time.

Additionally, once the lawsuit is filed, the legal fees will increase (in most cases).  The accident victim will need to check his legal representation agreement, which is the formal contract signed by the victim and his accident lawyer.  The agreement will explain how the contingent fee percentage will increase at each stage of the representation.  When the case is filed as a formal lawsuit, the percentage may increase.  If the case goes to trial, the percentage may increase.  Contingent fee percentages will also rise if the case goes forward on appellate review.

The accident victim will not be paying any of these fees and expenses during the pendency of the case, because it is a contingency matter.  Even if the case goes on appeal and takes years to resolve, the contingency agreement will be effective and the victim will not have to reach into his pocket to pay for these costs.  However, when the matter is resolved, these costs will be deducted from his gross recovery before he receives his net final compensation.

A Florida accident victim may find that he will get a larger payment from the defendant in pre-suit settlement than if the case proceeds to trial, considering the additional expenses required by the litigation process.

Additionally, for some legal claims, Florida law provides that the losing party in a lawsuit must pay the winner’s legal fees and court costs.  If you settle before filing a lawsuit, then you will not owe the other side any costs or legal fees.  For more, see: Florida Personal Injury Lawsuit Risks.

4.  If You Settle, Then You Avoid The Jury

When the accident victim negotiates a settlement with the opposing counsel during the litigation process, the parties and their lawyers negotiate a deal.  Sometimes, there is a formal mediation where the mediator is involved to help facilitate a resolution.

If the injured party settles before filing a lawsuit, then the victim gets to make the decision on the settlement amount.  If the case goes to trial, that decision is taken out of the victim’s hands and the jury will decide who is liable for the damages.  Once the jury decides how much each party was liable, in percentage terms, then they decide the amount of compensation the victim receives for his or her injuries. Having a jury decide your case is risky, because the decision may or may not be in your favor.

5.  If You Sue, Then An Appeal Can Take Place

After any injury trial, there will be a review of the entire trial proceedings by the losing party.  If there is an argument for “reversible error,” then an appeal can be filed.  This will put the case on hold while the arguments are heard at the appellate court.  If a new trial is ordered on the issue(s), then there will be another court proceeding at the trial level.

All this must happen before you are paid your damage claim, no matter how certain you are of your legal position and regardless of how you are victorious at every stage of the appellate process.

6.  If You Sue, Then Your Award Can Be Reduced

In Florida, contributory negligence is a recognized defense.  This means that if the defendant can substantiate that the victim contributed to the accident, then this will reduce your award of damages.  For example, if you are found to be 10% contributorily negligent in a car crash, then the jury award will be reduced 10%.

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

7.  If You Sue, Your Past Can Come Back to Haunt You

In a lawsuit, any pre-existing injuries or prior injury claims from the victim’s past may be used against them by the defendant.  For instance, pre-existing back injuries may be used to argue against your spinal cord injury claims in the slip and fall litigation.

If the accident victim settles before filing a lawsuit, then he or she does not have to give the insurance adjuster this information.  Of course, the defense may be aware of the prior accident or pre-existing injuries during settlement negotiations.  There is no guarantee that the insurance adjuster, for example, may not discover a pre-existing injury upon reviewing medical records provided to support your medical expenses claim.

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

8.  If You Sue, There’s No Guarantee

When the accident victim goes to trial, the jury decides whether or not the defendant is liable for the accident, whether or not each element of damage claimed by the plaintiff is compensable, and how much should be awarded to the plaintiff.

Every plaintiff in a civil lawsuit runs the risk of receiving nothing.  Pain and suffering is very real for victims, but for many juries they are discounted.  Florida appellate courts may reverse a jury verdict of zero damages for pain and suffering as being “inadequate as a matter of law,” and send the issue back for another jury to consider.  However, this may take years to resolve.

Accident victims need to understand that accepting a decent settlement offer in hand may be a better decision than risking taking their claims to a jury.  There’s always a risk when a jury is involved.

Should you settle or sue?

An experienced Florida personal injury attorney can help you in making your demand for damages after a serious accident.  He or she can also help you evaluate your situation so you can decide what is best for you and your family:  to negotiate a formal settlement agreement or to file a formal civil lawsuit.

If you or a loved one has suffered injuries from an accident here in Florida, and you are not sure if you should you settle or sue, then a good piece of advice is to speak with an experienced personal injury lawyer to learn about your options. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

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

 

 

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

18 Signs That You Have PTSD from A Car Accident           

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After a motor vehicle accident, most victims are focused on recovering from their physical injuries.  After all, every morning when they wake up and they look in the mirror they can see and touch their injuries. However, there is one type of injury that can’t be seen by victims but is equally as damaging. That is the psychological trauma that results from a car accident, including post-traumatic stress disorder (“PTSD”).

The alarming fact about PTSD is that it receives very little attention, despite the fact that up to 45% of auto accident victims suffer from this type of personal injury.

This statistic is well-documented among researchers as well as the medical community.  Often times, insurance adjusters and health care providers don’t acknowledge the fact that post-traumatic stress disorder is one of the major consequences of motor vehicle accidents. Unfortunately, when trying to settle a car accident claim, we have to educate insurance adjusters on the importance of these damages.

 

 

Auto Accidents Are A Leading Cause Of PTSD

Over 15 years ago, the American Psychological Association recognized motor vehicle accidents as one of the leading causes of PTSD in the United States.   In fact, around the world the correlation between PTSD and motor vehicle accidents is so well-documented that it is specifically referenced as “Motor Vehicle Accident Related PTSD” (“MVA-PTSD”) or “Motor Vehicle Collision Related PTSD” (“MVC-PTSD”).

See, e.g.,  Stein, Dan J. et al. “Post-Traumatic Stress Disorder Associated with Life-Threatening Motor Vehicle Collisions in the WHO World Mental Health Surveys.” BMC Psychiatry 16 (2016): 257. PMC. Web. 20 Mar. 2018.

Reality Of MVA-PTSD

Many traffic accident victims find family members and friends confused about their behavior after a car crash.  Everyone’s stress can be exacerbated by loved ones’ frustration and impatience in the face of the victim’s post-accident behaviors.

Historically, there has been a stigma associated with PTSD which has been thoroughly refuted by medical experts.   In the late 1970s, PTSD was a controversial diagnosis.  Some considered it to be the result of internal strife or weakness.  Today, it is known that PTSD is the result of an outside event or trigger (the “etiological agent”) which causes suffering and trauma for its victim.

The reality of PTSD is not disputed, although many family members, colleagues, and friends are still ignorant of its implications.  PTSD is a disorder caused by an outside event that is a serious and sometimes debilitating condition recognized within the medical community.

MVA-PTSD is a part of the pain and suffering many accident victims experience after an accident which can be treated through a combination of medication and / or psychotherapy. 

DSM-5 Recognition Of PTSD

Post-traumatic stress disorder is an acknowledged illness listed in the Diagnostic and Statistical Manual (DSM-5).  Published by the American Psychiatric Association, the DSM is used by mental health professionals in both diagnosis and treatment.  Insurance carriers recognize the DSM as well.

In the DSM-5, PTSD is no longer considered an “anxiety disorder,” but recognized as a “trauma or stress related disorder” triggered by the victim’s exposure to:

  1. actual or threatened death,
  2. serious injury, or
  3. sexual violation.

See: DSM Fact Sheet (pdf) Post Traumatic Stress Disorder (2015).

18 Signs And Symptoms Of PTSD

The DSM-5 first considers PTSD as being classified within the following four clusters:

  • Reliving the event (also called re-experiencing symptoms);
  • Avoiding situations that remind you of the event;
  • Negative changes in beliefs and feelings; and
  • Feeling keyed up (also called hyperarousal).

Within these four clusters, or categories, the DSM-5 breaks down symptoms of Post-Traumatic Stress Disorder into the following 18 individual symptoms:

Re-experiencing, or reliving, the traumatic event includes these symptoms:

1. Frequently having upsetting thoughts or memories about a traumatic event

2. Having recurrent nightmares

3. Acting or feeling as though the traumatic event were happening again, sometimes called a flashback

4. Having strong feelings of distress when reminded of the traumatic event

5. Being physically responsive, such as experiencing a surge in your heart rate or sweating, when reminded of the traumatic event

Actively avoiding people, places, or situations that remind you of the traumatic event includes these symptoms:

6. Making an effort to avoid thoughts, feelings, or conversations about the traumatic event

7. Making an effort to avoid places or people that remind you of the traumatic event

8. Making sure you’re too busy to have time to think about the traumatic event

Feeling keyed up or on edge, known as hyperarousal, includes these symptoms:

9. Having a difficult time falling or staying asleep

10. Feeling more irritable or having outbursts of anger

11. Having difficulty concentrating

12. Feeling constantly on guard or like danger is lurking around every corner

13.Being jumpy or easily startled

Thoughts and feelings about yourself and others may become negative and can include these symptoms:

14. Having a difficult time remembering important parts of the traumatic event

15. A loss of interest in important, once positive, activities

16. Feeling distant from others

17. Experiencing difficulties having positive feelings, such as happiness or love

18. Feeling as though your life may be cut short

Treatment And Help For Victims Of MVA-PTSD

After an accident, victims should demand that the at-fault driver cover the following expenses as part of any personal injury settlement.  Alternatively, these expenses can be itemized and presented to a jury for its consideration in assessing damages in its verdict.  What expenses can be covered in a claim for damages involving MVA-PTSD?  The American Association of Family Physicians (AAFP) offers the following guidance to those who suffer from MVA-PTSD.

While a victim’s course of treatment will be designed to meet their individual needs, as a general rule, the following will likely be a part of most treatment plans for anyone who has been involved in a car crash and suffers from MVA-PTSD.

1. Professional Counseling

First, accident victims should work with their health care providers to return the victim to the same level of functioning that he or she enjoyed before they were involved in the car crash.  Counseling will involve many things, including learning how symptoms may be triggered in the future and what the victim can do to lessen exposure to trigger situations.

2. Discussion of the Event

Second, the victim will need to regain control over their behaviors by discussing the car crash and sharing the details that created the traumatic condition.  Family doctors and mental health specialists may both participate in the victim’s need to discuss what has happened to him or her.

3. Education of the Victim and their Loved Ones

Third, accident victims need to be educated about how common it is for motor vehicle accident victims to suffer from post-traumatic stress disorder.  Their family members and friends also need to be educated on this realty to lessen the stress for everyone and increase the strength of the victim’s support system.  Education is a process where the MVA-PTSD is “normalized” which is a step toward recovery from the disorder.

4. Long-Term Recovery

Fourth, MVA-PTSD is complicated.  Some symptoms will be present very soon after the crash has occurred.  Other symptoms will not surface for weeks, or months, later.  Treatment for MVA-PTSD will need to cover the entire time period required by the accident victim to gain victory over the trauma and return to a fully functioning state.

5. Medication

Fifth, prescription medication may be advised. MVA-PTSD victims may benefit from benzodiazepines, for instance, which can help treat anxiety and other symptoms.

Questions To Ask An Accident Victim Who May Suffer From MVA-PTSD

What if you are a parent or spouse concerned about a loved one who has been in a severe motor vehicle accident?  Are there signs that you can find to help establish if your loved one is suffering from MVA-PTSD?

After a serious car crash, the accident victim may not want to address changes in his or her behaviors.  The victim may not want to consider they may be suffering from post-traumatic stress disorder. Maybe they just want to “get over it.”  Maybe they are frustrated they aren’t bouncing back as they’d like.  Some may be ashamed to think they may have psychological issues that need to be addressed.

The American Association of Family Physicians (AAFP) describes the following two questions  as part of a family doctor’s assessment of an accident victim’s trauma and whether they suffer from MVA-PTSD.   While these questions are not offered as a diagnostic tool, they may help concerned family members wanting to help the accident victim dealing with unresolved issues resulting from the serious car crash.

Any “yes” answer is a clue that the victim may be suffering from MVA-PTSD.  If the victim answers “yes” to both questions, then the AAFP position is that the likelihood that he or she is experiencing MVA-PTSD is high.

1.   “Do you have flashbacks or nightmares of the accident?”

Explain to the victim that these are not just dreams that happen in the middle of the night.   You want to know if they are daydreaming about the crash.

Also, you want to know if they are going over the accident again and again in their head, in slow-motion replays or “freeze-frame” images of the accident.

The more the accident victim is revisiting the accident or crash, then the more likely that he or she needs help to recover from MVA-PTSD.

Also, be aware if they claim to remember nothing about the crash whatsoever.  This can be a sign of head trauma or traumatic brain injury, which often has amnesia as a symptom.

2.   “Have you had any difficulty with driving or traveling in vehicles since the accident?”

The AAFP reports that most accident victims do not refuse to drive again, but that most accident victims are somewhat timid getting behind the wheel after they’ve been in a serious crash. That’s understandable.

When the line is crossed into MVA-PTSD, the accident victim may have real distress when they are in a vehicle, even if they are not driving.  He may start refusing to drive at night, or on highways where he would have to go over a certain speed limit.  Self-imposed limitations on driving may be a hint the accident victim is experiencing MVA-PTSD.

Ritualistic behaviors or avoidance are hints that the accident victim needs help to recover from MVA-PTSD.

Those At Higher Risk For MVA-PTSD: Risk Factors

Some accident victims are at a higher risk for developing MVA-PTSD.  Research has confirmed that there are identifiable PTSD risk factors for victims of a serious motor vehicle accident.

As explained by Dr. Steven Gans and Professor Matthew Tull in an article published by VeryWellMind on January 7, 2018, entitled “PTSD and Car Accidents: Know Your Risk After a Crash,” the following are MVA-PTSD risk factors:

  • Having had another traumatic event or events
  • Having psychological difficulties prior to the traumatic event
  • A family history of psychological problems
  • Whether the trauma was life-threatening
  • Losing someone in the trauma
  • The amount of support received following the event
  • Emotional response (fear, helplessness, horror, guilt, or shame)
  • The presence of dissociation during the trauma.

If your loved one is an accident victim who exhibits one or more of these risk factors, then he may suffer from MVA-PTSD. 

Florida Accident Lawyer Can Help Victims Of MVA-PTSD

Those who have been involved in a serious car accident caused by the negligence of another are able to file claims for damages resulting from the crash.  Under Florida law, the accident victim is able to obtain financial compensation for things like lost wages, physical pain and suffering, surgery expenses, hospital stays, rehabilitation costs, and even personal property losses caused by the wreck.

Included among these legally recognized damages claims is financial compensation to cover the cost of treatment for MVA-PTSD.  The specific damage claim will be tailored to the victim’s needs.  Some may need things like medication coverage for anti-anxiety or antidepressant medications.  Some may need cognitive behavioral therapy (CBT) among other courses of psychological treatment.

While there should no longer be a stigma regarding the diagnosis and treatment of post-traumatic stress disorder, these damage claims after a serious auto accident may be difficult to process and complete.  The victim may not want to pursue the claim initially because of anxiety or stress or shame.  The insurance adjuster may discredit the situation or the diagnosis.

Having an experienced Florida car accident attorney to advocate for a victim suffering from MVA-PTSD with compassion and zeal can be  vital to the victim to getting the justice he or she deserves. 

Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

For more information, see:

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

 

 

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Slip and Fall Pain and Suffering Lawsuits

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Examples of lawsuits where the pain and suffering damage awards were found to be inadequate as a matter of law

One of the most frequently asked personal injury questions we hear in our office is about the amount of pain and suffering a victim can recover for their slip and fall. When answering that question, we consider the five Florida appellate court decisions below that ruled, as a matter of law, on the issue of whether or not a jury’s award of pain and suffering damages were inadequate.  We believe these decisions give guidance for establishing a floor for these damages, which by their nature are hard to determine because of the difficulty of placing a monetary value on a victim’s past, present, and future pain.

Nevertheless, the following cases should be evaluated by a slip and fall victim when considering their damage demands and evaluating their case in settlement negotiations, both before and during litigation.

 

  1. West v. Food Fair Stores, Inc., 305 So. 2d 280 (Fla. Dist. Ct. App. 1974)

The test on whether or not a jury verdict is inadequate is if a jury of reasonable people could have returned that jury verdict. 

While shopping for groceries, Margaret West slipped and fell at the Food Fair Store.  She hurt her back, forcing her to have two spinal surgeries.  Neither of these back surgeries resolved her back injuries, and she was assessed with a 40% permanent disability.

She sued the store owner under premises liability law for damages sustained in the slip and fall accident along with her husband, and the case went to a jury.  Because Mrs. West had a congenital spine problem prior to the fall, the jury held her 50% responsible for the injuries.

She appealed her jury award, arguing that the jury verdict was “so grossly inadequate as to shock the conscience of the court” and asked for a new trial on damages.

The Florida appellate court found that the test to use in determining if a jury verdict is inadequate is to ask if a jury of reasonable men could have returned that verdict.

They then reviewed the evidence presented to the jury at trial, and found that the jury could have attributed Margaret West’s pain and suffering to her congenital condition.  “[I]t cannot be said that the jurors as reasonable men could not have reached the verdict they did.”

Under the test, the appellate court was unable to find the verdict of the jury clearly and grossly inadequate and Mrs. West did not get a new trial on the damages award.

  1. Risley v. Chart House, Inc., 756 So. 2d 143 (Fla. Dist. Ct. App. 2000)

When it is undisputed evidence that there will be continued pain and suffering as a result of an accident, a zero award for pain and suffering is inadequate as a matter of law.

Eva Risley was leaving the Chart House restaurant here in Miami, when she slipped and fell on the walkway stones, fracturing her right hip.  She was 82 years old at the time of the accident.

Mrs. Risley was seriously hurt in the fall, having hip replacement surgery with 10 days hospitalization followed by 2 weeks of inpatient rehabilitation and therapy.

After the hip surgery, Mrs. Risley regained her full hip function.  The post-surgical pain in her hip went away.  However, the fall injury had hurt her right knee as well, aggravating a pre-existing arthritic condition.  She was forced to have knee replacement surgery, spending another several weeks in the hospital.

Mrs. Risley claimed these damages from The Chart House, which denied liability.  She filed a lawsuit and the case went before the jury.  The jury awarded all of her medical expenses for both surgeries and hospitalizations.  It also awarded her $5,000 to cover future medical expenses.

However, there was no jury award for pain and suffering, disability, physical impairment, disfigurement, mental anguish, inconvenience, and loss of capacity for the enjoyment of life in the past and zero for the same damages in the future.

Mrs. Risley appealed the jury verdict to the Florida appeals court arguing it was inadequate.

The Florida appellate court found that since there was no dispute that Mrs. Risley underwent the two surgeries and spent significant time in the hospital; the jury award was grossly inadequate and unreasonable as a matter of law.

In its ruling, the court looked to an earlier case for guidance. There, in Dolphin Cruise Line, Inc. v. Stassinopoulos, 731 So.2d 708, 710 (Fla. 3d DCA 1999), the court had held where “the evidence is undisputed or substantially undisputed that a plaintiff has experienced and will experience pain and suffering as a result of an accident, a zero award for pain and suffering is inadequate as a matter of law.”

  1. Stevens v. Mount Vernon Fire Ins. Co., 395 So. 2d 1206 (Fla. Dist. Ct. App. 1981)

An award that ignores proven pain and suffering damages is inadequate as a matter of law.

Verna Stevens was doing her laundry when she slipped and fell at the laundromat.  She was 65 years old at the time, and she broke her wrist in the fall.  Medical bills totaled $600.00 for her broken wrist, and for a year after the accident, she complained of pain in her wrist.

Mrs. Stevens sued the owner of the laundromat for damages under Florida premises liability law.  There was no real dispute over her evidence of medical bills but the defense challenged her claim for pain and suffering damages.

She provided expert testimony that her complaints were consistent with medical physical findings and the prognosis that she would not only have pain, but that she would suffer increasing pain in the future. Her expert gave her a 10% permanent disability as a result of her slip and fall wrist injury.

At trial, the jury found the owner to be 100% at fault for the accident.  The jury awarded Mrs. Stevens all her medical expenses but nothing for any other damage claim, including past, present, and future pain and suffering.  The total jury award was $600.00.

So, Mrs. Stevens appealed the award as inadequate damages.  The appellate court agreed with her and sent the case back for a new trial.  It held that when a jury awards the exact amount of medical expenses, despite indisputable evidence that the plaintiff suffered at least some pain from her injury, there has been an inadequate damage award as a matter of law.

  1. Soto v. Dolgen Corp., Inc., 665 So. 2d 1086 (Fla. Dist. Ct. App. 1995)

A shocking disparity between the actual medical expenses and the award for pain and suffering can be held as grossly inadequate as a matter of law.

Benito Soto slipped and fell while shopping and shattered her left shoulder in the accident. Mrs. Soto was 59 years old at the time.  She was in the hospital for two weeks following the fall, and needed two different surgeries to repair her shoulder injuries.  Her doctor found that she suffered a 40% permanent loss of function in the shoulder because of how it was broken, as well as contributing factors of bone loss, rotator cuff tear, and calcification.  This constituted a 20% permanent bodily disability according to her physician as well as the defendant’s medical expert.

Because the store would not agree to settle the case, Mrs. Soto filed a premises liability lawsuit against the store owner.  At trial, her disability percentages were placed into evidence as well as medical testimony that Mrs. Soto could not lift her left arm higher than 45 degrees and would experience continuing pain in her shoulder.  Her prognosis included the possibility of another surgery to have a total shoulder replacement.

The jury found that the store owner was 40% negligent and awarded $37,200 for past medical expenses, $15,000 for future medical expenses, and $5,000 for past pain and suffering, etc. The jury awarded $1000 awarded $5,000 for future intangibles and $1,000 for past loss of consortium and $1,000 for her husband’s future loss of consortium.

The Florida appellate court ruled that these amounts were grossly inadequate given the evidence presented at trial.  Specifically, $5,000 for past pain and suffering, etc., and $5,000 for future intangibles were found to be “shocking” in comparison to the medical expenses and inadequate as a matter of law.

After all, Mrs. Soto had demonstrated that she had gone through two separate operations, and now suffered a permanent disability.  So, Mrs. Soto was granted a new trial to assess damages. The court held that under the circumstances, all the damages should be retried unless the parties agree that the amounts awarded for past and future medical need not be retried.

  1. Diaz v. Xtra Super Food Centers, Inc., 579 So. 2d 893 (Fla. Dist. Ct. App. 1991)

The total damage award for intangibles includes pain and suffering damages and can be grossly inadequate when compared to the actual medical expense damage amounts. 

While shopping for groceries, Maria Diaz, a sixty-one year old lady, slipped and fell at her Xtra Super Food Center.  She hurt her back in the fall and presented a claim for damages which was disputed by the grocery store owner, forcing her to file a lawsuit.

At trial, three doctors testified regarding her injuries.  One was a board-certified orthopedist who examined her for the defense and testified that Mrs. Diaz had sustained a 50% compression fracture to a lumbar vertebra, which was a permanent injury that would cause pain throughout her life.

Mrs. Diaz presented evidence of unpaid medical expenses of $3,200.00 and lost wages of $560.00.  The jury verdict came back with a total damage award of $5,000.00.

Mrs. Diaz appealed this jury verdict to the Florida appeals court, arguing that the jury verdict was inadequate in the damage total.  The appellate court agreed.

It held that the jury verdict allocated less than $1,300.00 for all her other damage items, including the intangibles.  Given the evidence she admitted at trial, this was held to be grossly inadequate to compensate Mrs. Diaz for the permanent and serious injury she suffered.

The case was sent back for a new trial solely on the right amount of damages Maria Diaz should be awarded.

Florida Slip and Fall Lawyer

Even though many lawyers do not like doing so, an experienced Florida slip and fall injury lawyer should be able to, based upon their knowledge of the law and past experiences with juries, give an opinion on whether or not a pain and suffering settlement offer is fair. However, in giving that opinion the victim must know it is difficult to assess a victim’s future pain and suffering.

A good lawyer should take the time to explain to a victim what the law says about these damages to avoid having the victim feel like they are being victimized all over again, this time by the insurance company and/or their lawyer.

A good piece of advice if you or a loved one are injured in a slip and fall, is to speak with an experienced personal injury lawyer to learn about pain and suffering damages as well as 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, whichever you prefer) to answer your questions.

You May Also Be Interested In: What Is Pain and Suffering Under Florida Law?

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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 Fall Depositions      

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

Premises Liability Lawsuit: Depositions are Part of the Process

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

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

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

 

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

What Should A Plaintiff Expect At Their Deposition?

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

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

Deposition Strategies

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

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

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

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

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

Will The Deposition Be Used At Trial?

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

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

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

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

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

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

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

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

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

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

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

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

What were you looking at?

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

Were you looking where you were going?

Same as above.

What did you see?

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

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

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

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

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

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

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

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

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

What were the side effects from the medication?

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

How big was the object?

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

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

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

Do you know how the object got there?

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

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

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

Did you or anyone take pictures of the fall?

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

Did you sign anything?

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

Did you fill out an incident report?

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

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

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

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

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

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

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

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

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

Who came and attended to you?

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

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

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

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

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

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

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

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

How Does A Personal Injury Lawyer Help?

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

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

A good piece of advice if you or a loved one are injured in a slip and fall and are unable to settle your case, is to speak with an experienced personal injury lawyer to learn about some of the issues that can arise with these claims, including what to expect at a deposition and the type and amount of damages you can recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

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.

Florida Car Accident Lawsuit

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

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

 

 

Automobile Accident Insurance Is Required In Florida

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

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

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

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

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

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

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

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

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

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

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

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

4 Parts To A Florida Car Accident Lawsuit

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

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

Jury Instructions In An Auto Negligence Lawsuit

The Florida Supreme Court approves standard jury instructions that are to be used in all civil actions.  While the lawyers have some say in what instructions are to be given in their “charge conference,” the judge decides what the jury hears.

These instructions from the judge illustrate things like:

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

Where Do You File a Florida Car Accident Lawsuit?

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

Should You Be Concerned About Filing A Lawsuit?

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

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

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

Who Can You Sue?

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

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

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

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

Deadlines to File a Car Accident Lawsuit in Florida

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

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

Injury Claim v. Wrongful Death Lawsuit

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

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

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

Comparative Negligence Law in a Florida Car Crash Case

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

What is Comparative Negligence?

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

How Does Comparative Negligence Work?

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

Here is how it works:

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

No-Fault Law in Florida Auto Accident Claims

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

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

PIP Coverage

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

PIP Deadlines and Limits

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

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

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

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

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

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

Read: Florida Car Accident Compensation Law

What Damages Can You Recover in a Car Accident Lawsuit?

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

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

Damage caps

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

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

A. Medical Errors during Treatment for Auto Accident Injuries

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

B. Punitive Damages – Drunk Drivers

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

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

What Should You Do?

A good piece of advice if you or a loved one are injured in a car accident and you are unable to settle your case, is to speak with an experienced car accident lawyer to learn about some of the issues that can arise with filing a lawsuit, including settlement conferences or mediation, depositions, interrogatories, and the actual trial. Most car accident lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

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

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

How Do You Prove A Premises Liability Claim?

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

The parent or guardian must provide evidence that establishes:

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

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

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

Owners versus Occupants

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

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

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

Foreseeability

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

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

The Case of the Deadly Shrub

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

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

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

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

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

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

Open and Obvious Danger

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

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

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

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

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

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

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

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

Florida’s Attractive Nuisance Doctrine

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

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

What Kind Of Compensation Can A Child Victim Recover?

A child victim may recover basic personal injury compensation including:

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

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

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

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

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

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

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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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Wood Floor Slip and Fall Accidents

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

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

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

Different Types of Wood Flooring

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

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

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

 


 

Gloss Finished Wood Floors

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

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

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

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

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

How Do Insurance Companies Define Proper Care and Maintenance?

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

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

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

Proper Maintenance Requirements For Wood Floors

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

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

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

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

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

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

How Do You Make Wood Floors Safer?

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

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

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

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

Have You Been Hurt Falling Down On A Wood Floor?

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

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

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

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

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

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

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

 

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


 

What is Negligence?

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

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

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

Court Defined Negligence

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

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

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

Types of Negligence

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

There are two types of negligence in Florida:

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

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

What Do You Need To Prove In a Negligence Lawsuit?

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

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

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

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

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

Duty-Breach-Cause-Harm

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

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

Other Hurdles in the Lawsuit

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

What does not have to be proven?

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

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

Jury Instructions In A Negligence Lawsuit

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

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

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

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

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

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

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

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

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

When Does the Jury Hear Instructions on the Law?

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

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

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

What Should You Do?

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

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

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

_______________

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

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

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

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

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

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

 

Approacing Intersection on Florida Road A1A

 

Florida Traffic Law for Making Turns at Intersections

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

What Does Florida Statute 316.151 Say About Making Turns?

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

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

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

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

What If There Is A Traffic Light?

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

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

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

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

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

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

Common Law and Left Turn Accidents

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

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

Read: Florida Car Accident Compensation Law

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

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

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

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

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

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

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

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

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

Last Clear Chance Defense

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

The Case of the Fishing Buddies on Highway 1

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

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

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

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

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

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

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

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

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

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

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

What Should You Do?

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

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

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

You May Also Be Interested In:

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

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

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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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