Florida Injury Law On Defective Brakes And Brake Failures

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Summary Of All Florida Case Law About Car Brakes Where Someone Was Injured

When someone is injured in a car accident in Florida due to faulty brakes, several parties can be held accountable for a victim’s injuries, including the car maker, the seller, as well as those who have done repair or maintenance on one of the vehicles.

Below are summaries of Florida’s case law on defective brakes and the failure of a vehicle’s braking system to operate properly. The value of reading these cases is that they outline some of the most important issues for plaintiffs to focus on when pursing a claim, whether their claims are based upon negligence, strict liability or any other tort related cause of action.

Note: it is outside the scope of this article to discuss case precedent involving claims under Chapter 681 of the Florida Statutes, known as Florida’s Lemon Law (which relates to the repair, replacement and refund of a defective car), and/or under the Magnuson-Moss Warranty Act (the Federal Lemon Law).
 
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 5 Florida Lawsuits Which Outline The Issues With Personal Injury Claims Based Upon Defective Brakes

  1. Cohen v. General Motors Corp., Cadillac Div., 427 So. 2d 389 (Fla. Dist. Ct. App. 1983). 

Dr. Bernard Cohen was only trying to help when he was seriously injured by a 1978 Cadillac rolling over his leg.  Dr. Cohen had come to the aid of the Cadillac’s owner, and as a Cadillac owner himself, he knew that the brake’s manual release lever was under the dash.

When the Good Samaritan approached the Cadillac to help, the car was running.  The driver told Dr. Cohen the gear shift was in “park.”  This was wrong: it was in “reverse.”  When Dr. Cohen released the manual parking brake, the car rolled backward and over his leg, causing serious injury.

So, Dr. Cohen sued Cadillac for his personal injury damages.  His lawsuit was based upon (1) strict liability; (2) implied warranty; (3) breach of implied warranty of reasonable fitness for use, and (4) negligence.  He lost.

Both the trial judge and the appellate court held that even if the Cadillac’s automatic brake release failed to work, the proximate cause of injuries sustained by Dr. Cohen was not failure of the car’s automatic brake release, but his own use of the properly functioning manual brake release.

Both courts found that the plaintiff failed to prove the requisite proximate causation for his strict liability and implied warranty claims.  He also failed to establish in evidence that there was any negligence in failing to advise him to place the vehicle in park, or to utilize the footbrake when manually disengaging the emergency brake, because it was obvious that there was danger in manually releasing the emergency brake since the car engine was running and Dr. Cohen could have easily seen the gear was not in park. Meaning, what gear the car was in at the time was “obvious.”

  1. Masker v. Smith, 405 So. 2d 432 (Fla. Dist. Ct. App. 1981).

Several years back, Andrew Masker bought a used 1957 automobile from Richey’s Used Cars.  The test drive went well and so did the “as is” sale. Mr. Masker drove his car off the lot without a problem.  However, 11 days after the purchase, the brakes on the car failed as Mr. Masker approached a stop sign.

Since he could not stop the car, Mr. Masker went past the stop sign and into the intersection, where he collided with another car.  Andrew Masker sued the owner of the used car lot for his personal injuries suffered in the crash.

He asserted claims that (1) the car dealer had negligently fixed the brakes before he sold the car to the plaintiff; and that (2) there was a breach of an implied warranty of fitness as well as (3) strict liability because the defendant had created an unreasonable risk of harm by placing the car into the marketplace with a defective braking system.

To support his position, Mr. Masker introduced the testimony of the prior owner of the car, John Young.  Mr. Young testified that he had owned the car for five years.  He could not recall having any work done on the brakes, but that did not mean the brakes had never been repaired or maintained, he just had no recollection or documentation of any brake work.  Mr. Young’s testimony was supported by the testimony of his car mechanic.

Mr. Masker also hired an accident reconstruction expert to analyze the crash.  This expert testified he had torn the car’s brake system down to find an earlier brake repair involving an improperly installed O-ring in a wheel cylinder.  This mistake, the reconstruction expert explained, had allowed brake fluid to leak and the brakes to fail.

The trial judge ruled against Mr. Masker.  The appellate court then found that it was an “inescapable conclusion.” Meaning, this was a latent defect (hidden) in the car’s brake system which the used car dealer would not be able to discover unless he had taken the entire brake system apart, as the reconstruction expert had done during his investigation.

It did not matter that Mr. Young, the prior owner, could not remember if any work had been done on the car’s brakes.  This did not create any issue of fact regarding repairs done by the used car dealer.

Both the trial judge and the appellate court found that the defendant, the used car dealer, was not liable for (1) breach of warranty because of brake failure of car purchased “as is,” and (2) strict liability did not extend to dealer for latent defects for which he was not responsible and which he could not have discovered by exercise of reasonable care.

Thus, the car dealer was not negligent in failing to discover the defective brakes and was not liable for injuries suffered by his used car buyer when the brakes failed.

  1. Lash v. Noland, 321 So. 2d 104 (Fla. Dist. Ct. App. 1975).

Hyman Lash started off one Florida morning by driving to his country club in New Smyrna Beach to play golf. Mr. Lash got a club golf cart, and drove off to the first tee.  Seeing some friends, he stopped and parked the golf cart on an incline and set the brake.

When Mr. Lash got out of the golf cart the cart rolled backward pinning him between the cart and a parked car.

Mr. Lash suffered bodily injuries as a result of the accident. He then sued the manufacturer, Club Car, Inc., as well as Noland Golf Cart Service, and Dale Noland, individually, for negligence.

The only testimony presented by Mr. Lash in support of his claim came from the country club’s golf professional.  He had checked out the golf cart after the accident, and stated:

“I found the brakes on that particular cart, only one time in several tests, released itself, being depressed only a third of the way. When the brake was in the fully depressed position, then it would hold adequately.”

Mr. Lash lost at trial when the defendants requested a “directed verdict” at the close of the plaintiff’s case and it was granted by the trial judge.  Lash appealed the judge’s decision, seeking a return of the case to the trial court so the jury could make the decision.

On appeal, he pointed to the club golf pro’s confirmation that there had been previous complaints about the cart’s brakes. The evidence was clear there was prior knowledge that the cart had brake problems.

However, Hyman Lash did not pay for a testifying expert to opine on the cart’s brake defects; the defendants did.  The defense expert testified that the braking system design was far superior to that used in other golf carts.

So, Mr. Lash lost on appeal.  The reviewing court found that there was “no allegation, nor any proof, of negligence.”  It was not enough to show that the brakes failed and the cart pinned him to the car.  “That the accident happened is not sufficient,” explained the court.

  1. Holman v. Ford Motor Company, 239 So. 2d 40 (Fla. Dist. Ct. App. 1970).

Lee Holman was company president and one of his company perks was a company car.  Mr. Holman drove a 1966 Thunderbird and after about a year of driving the company T-Bird, he noticed the brakes were not working as they should.

So, Mr. Holman took the car to Duval Motor Company, an authorized Ford dealership.  This was the same dealership where he routinely took the company car in for service, and where the Thunderbird had been purchased for him.

The dealership determined the car needed a new power brakes booster system or unit.  The part was ordered from Ford Motor Company in Detroit, and then installed by Duval.

This brake part, the “booster unit” was sealed upon arrival at Duval.  It is a self-contained device.  The device is installed on the master brake cylinder on the forward side of the firewall.  It is linked to the brake foot pedal on one side, and linked by a rod to the master brake cylinder on the other.

The function of this booster unit is to give a power assist to the hydraulic brake system.  It does this via a vacuum system within the unit, the initial vacuum being supplied by a hookup between the booster and engine.

At trial, Duval’s witnesses testified this booster unit arrived as a contained unit, and that no one at the dealership was allowed to alter or change its inner workings. If a booster unit failed, they did not try and fix it; instead they replaced the entire part.  This was the procedure followed when the dealership worked on Mr. Holman’s Thunderbird: they replaced the unit without trying to repair the original.

After the replacement was installed, two dealership employees took the car for a road test.  During this test, the brakes seemed fine.  The dealership called Mr. Holman to let him know his Thunderbird was ready for pick up.

Lee Holman arrived to the Duval dealership and took possession of the Thunderbird.  Within minutes and just a few blocks of the dealership, Mr. Holman’s brakes failed in the middle of downtown Jacksonville traffic.

Acting quickly to avoid hitting several pedestrians, Mr. Holman veered into a parked car in order to stop the T-Bird.  He then sued both the car maker, Ford Motor Company and the dealership, Duval Motor Company, as an authorized Ford dealer.

He alleged each defendant was liable based upon (1) negligence and (2) breach of implied warranty.

At trial, each defendant pointed fingers at the other.  Both defendants recognized that Mr. Holman had suffered an injury, for which at least one of them was legally liable on one or more of his legal theories.

Ford argued that the brake failure resulted solely from faulty installation by Duval’s mechanics.  Duval argued the brake failure was a direct result of a defective part in the sealed booster unit furnished by Ford.

Ford also presented expert witnesses that testified if a part called a “tailstock” within the T-Bird’s sealed booster unit was broken, the only result would be a loss of the unit’s power assist.  The car’s basic, non-power brake system would still work.

Right before the case went to the jury, there was some legal maneuvering regarding withdrawals and amendments of motions, and the end result was that the case was submitted to the jury against Ford alone on both the counts of (1) negligence and (2) implied warranty.

On appeal, the District Court of Appeal held that there was no evidence, direct or indirect, of a defective power brake booster unit which allegedly caused plaintiff’s automobile accident.  Nor was there any evidence that the booster unit was installed by the dealer in any unusual or improper method.

Accordingly, the appellate court held when the evidence was conflicting regarding the brake failure or subject to different inferences as to what caused it, the case must go to the jury for its consideration.  The conclusion that negligence is the most likely explanation of the accident, or injury, is not for the trial court judge to make. 

As long as the plaintiff, Mr. Holman, provides sufficient evidence to permit the jury to draw the inference of negligence, the case must go to the jury, so the jurors can decide, as reasonable men may differ as to the balance of probabilities.  The case was returned for a jury trial.

  1. Rawls v. Ziegler, 107 So. 2d 601 (Fla. 1958).

Edward and Laura Rawls were driving along, with Laura at the wheel, when Laura began slowing down to a red light. Traffic was heavy. Behind the Rawls’ vehicle came driver Paul Ziegler.  He testified he was around two car lengths behind the Rawls, in the same traffic lane, when she slowed down and stopped.  He was driving between 20 to 30 mph at the time.

Paul Ziegler was driving a two-ton dump truck with a Chevrolet chassis and a five-yard dump body.  A month earlier, the truck had been purchased by his father J.H. Ziegler from Luby Chevrolet Co., who had paid Cecil & Bruce Truck Equipment Co to mount the body of the truck on the chassis.

The truck carried a full six-yard load of gravel.  It was undisputed that the truck was overloaded according to the manufacturer’s recommendation in its Chevrolet Data Book, which recommended only a two and one-half or three yard dump body for the hauling of coal, sand and gravel. Additionally, its Truck Operator’s Manual had the recommended gross vehicular weight as 16,000 pounds, a copy of which was given to Mr. Ziegler when he bought the truck.

According to Mr. Ziegler, he hit the brakes on his truck.  Something was strange: he was not able to depress the brake pedal.  He could not stop the truck in time to prevent rear-ending the Rawls’ vehicle, so he swerved.  While he succeeded in avoiding a full head-on collision with their car, he did not clear it.

Ziegler’s truck sideswiped the Rawls’ vehicle on its left side.  As for the Rawls’ car, accident scene photographs revealed a large hole in their top left fender and extensive damage to their left rear door.

The dump truck fell apart in the crash.  The rear end of the truck came off the truck body, with the real axle, the rear wheels and their springs photographed several feet behind the truck itself.

Evidence at trial confirmed that the rear end was attached to the truck body by the spring hangers at each end of the two rear springs.  The four rivets holding each spring hanger to the frame had been sheared off, even with the frame on the two spring hangers on the right-hand side.

On the left, the left front spring hanger had broken, leaving a small portion still attached to the frame by the two bottom rivets; the left rear spring hanger was still attached to the frame, the rivets intact.

Mrs. Rawls was seriously injured in the collision, as she was shoved by its impact into the steering wheel.  The couple then filed a personal injury lawsuit.

Their lawsuit claimed:

(1) Paul Ziegler negligently operated the truck so that it collided with the plaintiff’s car while it was stopped for a red light at an intersection;

(2) Luby was negligent in (a) placing upon the chassis of the truck a body reasonably calculated to carry a payload in excess of that for which the truck was designed, and (b) in manufacturing, selling, and designing a truck that was not in a reasonably safe mechanical condition for use upon a public highway; and

(3) Cecil & Bruce was negligent in (a) placing upon the chassis of the truck a body reasonably calculated to carry a payload in excess of that for which the truck was designed and (b) placing upon the chassis a body in such manner that the truck became a danger and hazard to persons using the public streets.

At trial, J.H. Ziegler stated that he bought the truck from a salesman of Luby.  He specified he wanted to buy a two-ton chassis with a five-yard dump body mounted on it, and he would be using it to haul fill.  The saleman told him this truck “would do the job.”  Mr. Ziegler requested the springs to be built up “to carry the load,” and five extra leaves were added. Other extras purchased by Mr. Ziegler were larger tires, a two-speed axle, and a vacuum brake booster.

Mr. Ziegler dealt only with Luby.  He was billed by Luby and paid Luby for the completed truck. Luby’s salesman did not advise him as to how much of a load he would carry in the truck.  Luby’s salesperson did not warn him against overloading.

After the purchase, Mr. Ziegler himself added a six- or eight-inch board to the dump body so that the five-yard body would hold six yards.

It was customary in the area to put a five-yard dump body on a two-ton chassis. Cecil & Bruce testified they had mounted 30 or 40 bodies on two-ton rated chassis in the past year.  The “greater majority” of these were five-yard bodies.

The owner who had hired Paul Ziegler to hauling the fill confirmed this was a customary, standard practice in the area.  He testified “It is almost a standard practice for a man buying a two ton truck to put a four yard body on it and build it up to haul six yards and some will request putting a smaller body on if they are a little short on funds and build it up later higher by sideboards to haul six…. but they all want to haul six yards on a two [ton] truck.”

The Court found it was clear by the evidence that overloading of the truck helped to cause the crash.  However, no evidence was presented that Luby could reasonably have foreseen that Ziegler or his sons would operate the truck in an overloaded condition.

Evidence was provided that the overloading of the dump truck on the built-up springs could not reasonably be found to be the sole cause of the accident. Concurring causes also included the brake failure. The possible failure of truck driver Paul Zeigler to operate the brakes properly at what might have been an excessive speed in the circumstances; and some exceptional force applied to the rivets, such as the sudden swerving of the truck or its impact with the plaintiffs’ car.

According to the Florida Supreme Court, “regardless of whether the jury may subsequently exonerate Paul Ziegler of negligence (as to which we express no opinion), the fact remains that, superimposed upon the negligence, if any, of Luby, were independent interviewing forces without which the accident would not have occurred.

“These hazards might have been foreseen by Luby as remote possibilities; but we have found no case, and none has been cited, holding that a manufacturer or supplier, or any other defendant, must “pay off” for failure to foresee a remote eventuality.”

In sum, where an independent force or act intervenes to bring about a result that the defendant’s negligence would not otherwise have produced, it is generally held that the defendant is liable only where the intervening force or act was reasonably foreseeable.

PLEASE NOTE: Rawls was distinguished by Dorse v. Armstrong World Industries, Inc., 513 So. 2d 1265 (Fla. 1987).  There, the Florida Supreme Court advises that a company must prove that it provided timely warnings of every reasonably known material risk inherent in its product’s proposed specifications, and every reasonably known material alternative for avoiding or reducing such risks. Risks and alternatives are “reasonably known” if they are “either actually known, or reasonably ought to be known given good design practice in the industry.”

What Do These Cases Tell A Victim?

These brake failure cases make it clear that an injury victim must prove, using credible admissible evidence, all elements of negligence to prevail with a claim.  Also, these cases show how defense attorneys will use the rules of civil procedure, by filing Motions for Directed Verdict (at trial) and Motions for Summary Judgment (before trial begins), to get a judgment entered in favor of their client.

However, just because it is easy for a plaintiff to recite the elements of negligence doesn’t make it easy to prove negligence. One way to do so is through expert analysis and testimony (see Holman, Lash, Masker). Knowing which experts to hire, and how to prepare them for trial, can mean the difference between winning and losing a case.

For more on the elements of a negligence claim, read: Negligence Lawsuits in Florida.

What Should You Do?

A good piece of advice if you or a loved one are injured in a car accident caused by defective or faulty brakes, is to speak with an experienced personal injury trial lawyer to learn about the type of evidence needed to prove a claim and how most insurance companies respond to these claims. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person) to answer a victim’s questions and to share what they know about defective brake claims.

You May Also Be Interested In:

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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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Reasons To Sue A Restaurant In Florida

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Slip and Falls, Food Poisoning, Burns, Discrimination And Other Personal Injury Claims.

It is difficult to list the variety of restaurants available in Florida, and how many food and drink establishments operate here.  A telling statistic: according to the National Restaurant Association, Florida’s restaurant industry employs 10% of the workforce of the entire United States.

Obviously, Florida’s food service is a profitable undertaking as it generated over $41 Billion in revenue in 2017.  What does this mean to a restaurant injury victim?

Food service is a well-funded industry with a large trade association that looks to protect its members. Meaning, companies insuring restaurants have sophistication in dealing with injury claims.  They often low ball these claims to achieve two goals: minimizing their payout, and maximizing their profits.
 
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Below are six (6) common reasons to sue a restaurant in Florida:

1. Slip And Falls & Trip And Falls

The most common accident in a restaurant involves someone losing their footing and suffering an injury from some type of transitory substance on the floor. The second most common fall occurs in the restaurant parking lot due to a wheel stop, ramp or inadequate lighting.

Since these are common claims, the victim should expect the restaurant will know exactly how to defend itself and will start doing so almost immediately following the accident.  The restaurant manager, for instance, may have training in how to document the scene, as well as what questions to ask the victim, and who to contact at the insurance carrier for a prompt response by the claims adjuster– all before the victim has even had the opportunity to seek medical care and treatment!

Anyone suffering injury in a Florida restaurant slip and fall must be aware not only of their right to pursue a claim for damages against the restaurant, but that their assertion of their legal rights may be fought hard by an aggressive defense.

For details on restaurant slip and fall cases, read our discussion on our main website, as well as other related blog posts:

2. Food Poisoning

The food service industry is highly regulated regarding the care and control of all its food items, especially perishable ingredients like seafood and produce.  The risk is high for restaurant patrons to suffer internal injuries and serious illness if proper oversight is not undertaken regarding the food itself.

Restaurant patrons can be harmed both by food contamination (like the recurring dangers of bacteria in lettuce) as well as food poisoning.

The danger of injury resulting from food poisoning in a Florida restaurant is a serious matter, particularly when there is the chance that several patrons may be harmed.  In fact, the risk to public safety here is so high that the federal government maintains a site asking for reports of suspected food poisoning at FoodSafety.Gov.

Food injury claims against Florida restaurants can be complicated in many ways, not only from determining the source and cause of the injury, but also in defending against arguments that another food source contributed or caused the illness.

These cases involve investigation into the source of the illness, as well as determining how and why the victim became ill and was harmed by the particular food item.

Restaurant food poisoning victims should be prepared for an aggressive defense by the business.  That is because the restaurant is not only facing monetary damages but also concern over the possible taint to its reputation and business goodwill from public knowledge that a patron fell prey to poisoning at its establishment.

For more on food poisoning claims, see our discussion on food poisoning.

3. Falling Out Of A Booth

Akin to a slip and fall claim against a restaurant is a cause of action based upon the victim losing their balance and falling out of a restaurant booth.  Sadly, some of these booth accidents can be tragic, especially if they involve infants or small children who are vulnerable to serious injury or even death from falling out of a restaurant booth.

We have delved into these dangers in greater detail earlier.  For more on restaurant booth claims, see:  Hurt in a Florida Restaurant After Falling Out of the Booth: Do You Have a Claim?

4. Burns

Some restaurants are particularly high risk for serious burn injuries because of their particular theme or flair.  There are dangers inherent in serving fajitas on hot metal platters, for instance.

Flaming desserts like the popular Bananas Foster are dangerous burn risks when prepared by a server at the patron’s table.  For example, several years ago restaurant patrons suffered serious burn injuries at a Tampa restaurant when the server added too much rum to the table-side dish, causing huge flames to burst from the pan, burning four of the restaurant’s guests.

Burn risks are high in restaurants that offer patrons open Japanese-style grills, as well.  A notable example here is the lawsuit filed by actress Tori Spelling for burns she suffered at a Los Angeles Benehana restaurant.

However, any Florida restaurant serving hot food runs the risk of a patron suffering a serious burn injury.  Even a hot cup of coffee can cause serious harm if the server spills it on the restaurant patron.

In Florida, burn injuries are particularly difficult claims because the harm is so severe. Even minor burns that are not life-threatening can involve extensive medical care and treatment over several years.  There is scar tissue to consider, therapy to cope with loss of function or mobility, and the psychological treatment needed for many burn victims dealing with disfigurement.

Restaurant owner and operators owe these burn victims a duty of care to protect against burn injuries which the victim must establish in their claims as being breached by the establishment in a manner that caused the accident.

Premises liability lawsuits in Florida are government by statute and must be pursued in a particular manner with a higher burden on the claimant than exists in other states.

For more, see our discussion as well as:  What Happens When Someone Is Injured at a Business or Commercial Location? Florida Premises Liability Law.

5. Hurt By Another Restaurant Patron (Assault)

Many food establishments offer alcoholic beverages to their patrons.  The restaurant may be a local bar and grill, or it may be a full service restaurant. Some offer alcohol as an accompaniment to their sit-down menu and others offer separate areas, where restaurant patrons can wait for their tables to be ready.

If a restaurant patron leaves the premises drunk, and then is involved I a motor vehicle accident, then the restaurant can be held liable under Florida’s dram shop law.  Restaurants are also vulnerable to legal liability when someone is a victim of an assault on the restaurant’s premises.

Consider the case of Jennifer Bellevue in Bellevue v. Frenchy’s South Beach Cafe, 136 So. 3d 640 (Fla. Dist. Ct. App. 2013).

Frenchy’s South Beach Café, Inc. (“Frenchy’s”) was a popular Clearwater restaurant with a full bar that was located one block away from the beach.  It was a popular spot with both the locals and with tourists alike.

Shelly Kneuer worked at Frenchy’s as a bartender.  One evening, not long before closing time, her roommate Jennifer Bellever showed up at Frenchy’s to give Shelly a ride home from work.  When Jennifer arrived at the restaurant, the only patrons in the place were a group of tourists.  They were a family visiting from Ireland, and they were having a grand time.  Testimony at trial was that the family members were “rowdy” and “disorderly” and had been drinking quite a lot.

Aside from the tourist family, the only people in the bar when Jennifer got there were her roommate Shelly, the restaurant manager, Jonathan Kirby, and Jennifer’s friend Christopher Malek.

An altercation ensued between Mr. Malek and one of the family members.  At first, it was just words.

The manager saw and heard all of this, and told Mr. Malek to leave things to Shelly the bartender.  Then the manager left the bar, to go upstairs for his usual evening routine of closing out things.

Things got louder and more hostile.  Shelly tried to resolve things, but she was a “petite woman” and soon one of the tourist family members shoved her.

Jennifer and her friend Christopher Malek jumped to help Shelly, and things turned into a fight.  The police were called.

By the time that law enforcement arrived, Jennifer Bellevue had sustained severe personal injuries from being beaten in the fight.  The police arrested all the family members.  Unfortunately, they escaped the country and returned to Ireland while out on bail.

This left Jennifer Bellevue with the only option of suing Frenchy’s for damages sustained in the assault.  Her legal argument was negligent security: Frenchy’s management was on notice that its patrons had a propensity to become violent, and that it failed to maintain adequate security to protect its patrons.

She investigated and sought to introduce evidence that there had been 60 prior incidents of fights and violence inside Frenchy’s or nearby the bar’s premises in the past 4.5 years prior to her assault.   The evidence consisted of police reports or notations found in Frenchy’s management logs during the discovery process.  Jennifer’s security expert provided his analysis of this evidence, to opine that the restaurant was negligent in providing security and protecting her from being harmed by the violent fight in the bar.

These incidents included:

(1) the night cook being stabbed in front of the restaurant after he got off work;

(2) multiple instances of patrons being kicked out of the bar for harassing employees, being vulgar, being rude, threatening employees, or being so drunk they fell off of a bar stool;

(3) patrons being kicked out for fighting;

(4) patrons drunk and fighting on the deck;

(5) a car being broken into in the parking lot;

(6) a minor in possession of alcohol who was armed with a knife out front;

(7) a near-fight between two patrons and a waiter;

(8) multiple instances of having to stop serving alcohol to patrons because they were “out of control”;

(9) multiple instances of drunk patrons being loud and vulgar or threatening; and

(10) the police having to be called because two patrons were about to fight.

At trial, Frenchy’s attorneys fought hard to keep as many of these incidents away from the jury as possible, and succeeded in getting all but 12 of the 60 incidents excluded at trial.  On appeal, Jennifer successfully had that ruling reversed, with all the incidents being allowed into the case.

The reviewing court found that all the incidents of violence sought to be introduced by Jennifer Bellevue were evidence of Frenchy’s knowledge of “a likelihood of disorderly conduct by third persons in general which may endanger the safety of the patrons.”

The defense argument failed.  Jennifer was allowed to enter all incidents into evidence and her security expert was allowed to discuss them as part of his opinion that Frenchy’s provided negligent security on the night she was hurt and therefore was liable for her injuries resulting from being beaten by another restaurant patron.

6. Discrimination

Restaurant injuries need not be physical in order to be legally compensable here in Florida.  Under both federal civil rights laws and Florida Statutes 760.07- 760.08, those who are the victim of unlawful discrimination by a Florida food service establishment are liable for damages, too.

Federal Discrimination Prohibitions

The key federal legislation protecting Florida restaurant patrons from discrimination is the historic Civil Rights Act of 1964, which outlaws discrimination in a “place of public accommodation” based upon race, color, religion, or national origin.  Additional federal protections exist in laws specific to the claimant, such as the Americans with Disabilities Act, which forbids discrimination on the basis of disability in a “place of public accommodation.”

In federal law, a “place of public accommodation” is defined to include any business or facility providing lodging, food, entertainment, sales, rental services, recreation, health care, or other professional services. See, 42 U.S.C. §2000a.

Claims based upon federal discrimination statutes are filed with the federal district court.  In addition to these civil claims for monetary damages, the victim of discrimination in a Florida restaurant can also file a formal complaint with the Justice Department’s Civil Rights Division.

Florida Statutory Discrimination Provisions

There is Florida state law independent of the federal civil rights law which also protects against anyone being discriminated against as a patron of a Florida Restaurant.

Under Florida Statute 760.08, “all persons” are entitled to the full and equal enjoyment of the goods and services as well as any facilities, privileges, advantages, or accommodations provided by a Florida restaurant.  It applies to all public restaurants, and many private ones.

However, some food service establishments are excluded from the statute.  They are “lodge halls or other similar facilities of private organizations which are made available for public use occasionally or periodically.”

The state anti-discrimination law protects against discrimination as well as segregation based upon:

  • race,
  • color,
  • national origin,
  • sex,
  • pregnancy,
  • handicap,
  • familial status, or
  • religion

Those restaurant patrons who are the victims of illegal discrimination as defined by this law have a statutory claim for damages.  These damages are specifically defined in Florida Statute 760.11(5), and they include:

  • A court order prohibiting the discriminatory practice;
  • Compensatory damages, including but not limited to, damages for mental anguish, loss of dignity, and any other intangible injuries;
  • Punitive damages capped at $100,000; and
  • Discretionary attorneys’ fees to be interpreted by the judge in a manner consistent with a federal civil rights (Title VII) action.

Deciding To Sue A Restaurant In Florida?

Victims of a discrimination based or negligence based injury in a Florida restaurant must be prepared for a battle with a well-funded industry.  An personal injury victim has the burden of proof to (1) establish the restaurant owner or operator was negligent (for slip and falls, the victim has to prove the owner knew, or should have known, about a dangerous condition) as well as (2) proving their injury and the extent of their harm.  They will need to be ready to deal with an insurance adjuster who is likely to not return their calls or make them a low ball offer.

Furthermore, if a personal injury lawsuits is needed to get justice, then some of these lawsuits require an expert to testify in order to prove the defendant was negligent (e.g., medical experts in food poisoning cases).

Therefore, if you or a loved one have suffered a personal injury in a Florida restaurant, then then a good piece of advice it 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 to learn how most insurance companies deal with these matters. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person) to evaluate your claim and 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.

Slip And Fall In A Restaurant Bathroom

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3 Examples of Restaurant Bathroom Slip And Fall Lawsuits

As a general rule, under Florida’s premises liability law restaurants are liable for any negligence related injuries suffered by their customers or guests. This includes accidents happening anywhere on the business premises, from the parking lot to the dining room, as well as the bathrooms.

 

Sink design in men's bathroom at a restaurant in Maryland

 

Court Cases Involving Restaurant Bathroom Slip and Fall Claims

Over the years, there have been many different types of restaurant slip and fall claims made by customers. Of course, the restaurants and their insurance adjusters (or defense attorney) try and limit liability or even deny responsibility for these claims.  This is true despite being reminded by their insurance carrier that they must act reasonably by taking certain precautionary measures to protect their invitees and avoid these claims.

Here are three examples of victims who filed a personal injury lawsuit to recover compensation for their injuries based upon a slip and fall in a Florida restaurant bathroom:

1.  The Case of Liquid Soap Leaking on the Restaurant’s Restroom Floor

John Reid and his wife went out to eat at their local Sambo’s Restaurant, and John took the opportunity to visit the restroom there.  In the restaurant bathroom, there was a soap dispenser installed on the wall that was manufactured by Georgia-Pacific.

The manufacturer’s instructions that came with the soap dispenser included the direction to use only Georgia-Pacific soap in the Georgia-Pacific dispenser.  The Georgia-Pacific soap was easy to spot: it was pink.

When John went into the Sambo’s Restaurant restroom, he slipped on soap on the floor and fell.  John was hurt in the slip and fall accident.

John and his wife presented accident claims to Sambo’s Restaurant, but the restaurant refused to negotiate a settlement.  The Reids were forced to file a personal injury lawsuit, which included Sambo’s Restaurant, Georgia-Pacific Corporation, and the distributor of the soap dispenser, Environmental Services, Inc.

The jury awarded the couple $1.2 Million against Sambo’s and Georgia-Pacific.  The jury did not find the distributor to be negligent.  Georgia-Pacific appealed the verdict.

At trial, there was evidence presented that the soap on the floor that caused John Reid to lose his footing was not pink, like the Georgia-Pacific liquid soap, but bluish-green.  John Reid explained that this blue-green liquid soap had leaked from the soap dispenser onto the restaurant bathroom floor.

The appellate court ruled that Georgia-Pacific did not know that Sambo’s Restaurant had substituted the bluish-green liquid soap for the Georgia-Pacific brand.  Accordingly, using the strongest inference available for the plaintiffs under the evidence, it held that Sambo was legally liable for the misuse of Georgia-Pacific’s soap dispenser.

As to the argument that there was any duty to warn on the part of Georgia-Pacific to anyone using its soap dispenser that liquid soap is slippery, this was dismissed by the appeals court as an unnecessary warning, since” [t]hat is simply common sense.”

To read the case in its entirety, see Georgia-Pacific Corp. v. Reid, 501 So. 2d 653 (Fla. Dist. Ct. App. 1986).

2. The Case of the Mysterious Wet Floor and the Warning Sign

Agnes Doran was enjoying a meal at Red Lobster when she went to use the restaurant restroom.  Agnes slipped and fell in the restroom and was hurt in the accident.  She filed an injury claim against Red Lobster, but the restaurant did not admit to being liable for the accident.  So, Agnes Doran filed a lawsuit based upon Florida premises liability law against the owner and operator of the restaurant.

Before the case, the defendant filed a motion for summary judgment, which was granted.  The trial judge agreed with Red Lobster: Agnes had failed to prove her case.  Agnes appealed that decision to the reviewing court, and the appellate judges sent the case back to be tried.  They agreed with Agnes.

Read: How To Survive A Summary Judgment Hearing Related To Your Slip And Fall Claim

The controversy here was in the evidence provided regarding what happened in the restroom.  No one disputed that Agnes had fallen there, and had been hurt.  The dispute arose over whether or not the restroom floor was wet at time she slipped and fell.

Red Lobster contended that the bathroom floor was dry at the time of the accident.  The restaurant manager testified that she checked out the condition of the restroom floor at the time of the accident.  In her inspection, she found the floor was not wet, as Agnes claimed.

The manager also testified that at the time of the accident, Mrs. Doran blamed the fall on her shoes.

Contrarily, Agnes Doran testified that this was not true:  she did not attribute her slipping on the floor as being caused by her shoes.  Agnes also testified that she thought the floor was wet at the time of the accident.  She did concede that she did not notice any water on the restroom floor either before or after she fell down.

There were other witnesses who shed some light here.  No one could provide evidence that the floor was indeed wet at the time of the incident.  However,  one witness did testify that she was watching as the paramedics arrived at Red Lobster, and they had to move a yellow warning sign which as best she could remember had the warning  “wet floor” or “be careful” on it.  This sign was on the floor in the area of the Red Lobster where Mrs. Doran fell.

Since there were disputes over whether or not the floor was wet at the time, the case was returned so a jury could make its final decision (if the parties didn’t settle first).

To read the case in its entirety, see Doran v. Florida Se Inc., 84 So. 3d 1062 (Fla. Dist. Ct. App. 2011).

For more on how shoes can be a key element in a slip and fall accident, read:  Are You Negligent If You Wear High Heels And You Slip And Fall?

3. The Case of Inferences Supporting Circumstantial Knowledge of the Toilet Paper Roll

According to the restaurant manager in this case, Grady’s opened each day for lunch at 11:00 a.m. and the public restrooms were checked every thirty minutes. As for cleaning the restrooms, the standard procedure was for the restrooms to be thoroughly cleaned at the end of the lunch hour shift, or around 1:30 p.m. each afternoon.

Genevieve Barbour was having a late lunch when she excused herself to visit the restaurant’s restroom.  There were several other patrons in the restaurant, maybe two or three other tables were being served lunch that day.

There was no dispute that no one else entered the restroom before her.

It was a little after 2:30 p.m. that day.  Genevieve slipped and fell on the restroom floor just as she was entering.

She testified that as she took a step, something on the floor rolled out from under her feet. She did not see what she slipped on as she was losing her balance and falling down.  Genevieve explained this was apparently a roll of toilet paper, with the roller mechanism still inside the cardboard core.  The toilet paper roll, with the rolling mechanism, was lying on the floor near her.

Genevieve also noticed a metal toilet paper dispenser there in the restroom that locked with a key.  The dispenser was open about one and one-half inches.  It did not have its roller.

Genevieve got up, placed the toilet paper roll on the restroom counter so no one else would trip over it, and went back to her table.  She told the wait staff; they got the restaurant manager.  In turn, the manager called for an ambulance to help Genevieve, and she was taken by ambulance from Grady’s to the hospital.

The manager checked out the restroom floor.  He testified that he saw nothing else on the restroom floor.  He testified he only found the roll of toilet paper, and not the mechanism, sitting on the counter. He also testified that if an employee found something on the bathroom floor, they were instructed to pick it up.

He also testified at trial that he could not remember who the server was who checked the restroom after Genevieve Barbour’s fall; he could not remember, and did not attempt to ascertain, which server or servers were responsible for cleaning and checking the restroom throughout the day; and he did not completely fill out the required incident report in which he stated that Genevieve Barbour walked out of the restaurant, when in fact she was carried out on a backboard and stretcher.

In discovery, the restaurant company, Brinker, responded to the request for names of the wait persons who were working at the time of the accident, by giving Genevieve Barbour a list of 57 employees, even though the manager testified that only six to eight were working at the time.

At the emergency room, Genevieve was found to have multiple bruises, shoulder and hip pain, and a sprained wrist.  She presented a demand for damages, which was denied by Grady’s, which was part of a chain owned by Brinker, Inc.  So Genevieve sued them under Florida premises liability law.

At trial, the key element was the knowledge on the part of the restaurant regarding that toilet paper roll and roller mechanism on the restroom floor.  The manager testified that the cleaning service and the servers were both responsible for filling the toilet paper dispensers.  These dispensers could only be opened if you knew how to do so. Members of the general public probably would not know how to get them open; the dispensers locked with a key.

The case went to trial.  The jury verdict was for the slip and fall victim, and the restaurant appealed.  The restaurant lost the appeal.

Knowledge of the Toilet Paper Roll

On appeal, the focus went to the standard procedure of the restaurant in inspecting and maintaining the restroom.  Under the procedure, the restrooms were checked every thirty minutes.  It could be inferred that the restroom would have been checked at approximately 2:30 p.m.

Under this scenario, the toilet paper roll should not have been on the floor when Barbour entered the restroom.

As for someone else being involved here, there was no dispute that no one entered the restroom besides the accident victim.  The jury could have inferred that Grady’s employees failed to inspect the restroom at 2:30 p.m. — or that an inspection was done and the employee failed to pick up the roller mechanism and toilet paper roll.  Thus, the toilet paper roll was on the floor longer than the time between reasonable spaced inspections.

Actual Knowledge

The appellate court pointed out that the restaurant had two legal duties to protect its invitee, Genevieve, from the harmful effects of dangerous conditions:

First, the restaurant must ascertain that the premises are reasonably safe for invitees, which includes the responsibility to use reasonable care to acquire actual knowledge of any dangerous conditions.  This duty is breached when a restaurant fails to make a reasonably diligent search or inspection at reasonable intervals of time.

Second, the restaurant has an entirely different legal duty to use reasonable care to protect invitees from dangerous conditions of which the restaurant has actual knowledge.  If a reasonable inspection would have revealed the dangerous condition in question, and if the dangerous condition existed prior to the injury a length of time in excess of the time between reasonably spaced inspections, then the trier of fact should find that the possessor neglected his duty and is liable for any injury legally caused by that neglect.

In the instant case, there was no direct evidence that Brinker had actual knowledge of the toilet paper roll and roller mechanism being on the restroom floor.

Circumstantial Knowledge

However, there was evidence of circumstantial knowledge on the part of the restaurant.  This included:

  • the toilet paper dispensers were under the exclusive control of Brinker;
  • photographs of the type of dispenser in use at the time of the accident;
  • two witnesses’ testimony that a key was needed to unlock the dispenser;
  • the victim’s testimony that she found the dispenser open immediately after her fall;
  • the victim’s testimony that she picked up the toilet paper roll with the roller mechanism still inside the cardboard roller from the floor inside the restroom stall;
  • the victim’s testimony that the dispenser was missing one roll;
  • the absence of the roll itself in evidence;
  • the absence of any photographs of the bathroom, the stalls, the dispensers, etc., at the time of the accident;
  • the testimony of Grady’s manager that he could not remember who the server was who checked the restroom after Barbour’s fall,
  • the testimony of Grady’s manager that he could not remember and did not attempt to ascertain which server or servers were responsible for cleaning and checking the restroom throughout the day; and
  • the testimony of Grady’s manager that he did not completely fill out the required incident report in which he stated that Barbour walked out of the restaurant, when in fact she was carried out on a backboard and stretcher.

It was up to the jury to decide the knowledge of the restaurant.  The jury disbelieved the manager when he testified he only found the roll of toilet paper, and not the mechanism, sitting on the counter where Barbour had placed it.

We know this because if the manager’s version had been accepted, no liability should have been assessed against the restaurant.  It is reasonable for an establishment to leave extra rolls of toilet paper out for customers’ use. In every day experience, this is a common and expected occurrence.

Another factor here was the missing toilet paper roll and rolling mechanism. They were never placed into evidence.

The jury could have considered the failure to safeguard the toilet paper roll and the rolling mechanism after the accident as significant.  It went to the manager’s lack of credibility, since this was his failure to follow company policy after an incident on the premises.  His credibility was also tarnished by the lack of pictures of the bathroom or the dispensers, when he could have photographed the accident scene.

The jury also didn’t buy the manager’s version of things when he could not remember who the server was who checked the restroom after Barbour’s fall, could not remember and did not attempt to ascertain which server or servers were responsible for cleaning and checking the restroom throughout the day, and did not completely fill out the required incident report in which he stated that Barbour walked out of the restaurant, when in fact she was carried out on a backboard and stretcher.

Finally, when asked who the server was who was working during the time of Barbour’s fall, Brinker gave Barbour a list of fifty-seven employees when the manager testified that only six to eight were working and that Brinker’s payroll records would show what time the employees arrived and departed from Grady’s.

Read: Proving the restaurant had actual or constructive knowledge of a dangerous condition.

Inferences Support Finding of Constructive Knowledge

These various inferences by the jury were not an impermissible stacking of inferences.  They were sufficient to find there was constructive knowledge of the dangerous condition because the jury had ample, admitted evidence upon which to make inferences. See  Johnson v. Dicks, 76 So.2d 657, 661 (Fla.1954).

To read the case in its entirety, see  Barbour v. Brinker Florida, Inc., 801 So. 2d 953 (Fla. Dist. Ct. App. 2001).

Florida Slip and Fall Accident Lawyer

An important element in winning a slip and fall claim, is being able to prove the owner or operator of the restaurant had knowledge of a dangerous condition and did not act timely, or did not act all, to remedy the condition. Proving these elements can be difficult to do, but not impossible. Video surveillance, witness testimony, maintenance records can be helpful in this process, but don’t expect the restaurant to be cooperative.

If you or a loved one were injured in an accident involving a slip and fall in a Florida restaurant bathroom, then a good piece of advice it to speak with an experienced 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 evaluate your claim and answer your questions.

For more on the liability of restaurants and other businesses for accidents including slip and falls that happen on their property, see:

Restaurant Slip And Falls – Evaluating Whether Or Not A Victim Has A Claim For Damages

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

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Florida 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.

You May Also Be Interested In: Slip And Fall In A Restaurant Bathroom

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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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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.

 

 

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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:

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

 

 

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Florida Car Accident Lawsuit

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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.

_______________

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.