Florida Personal Injury Caselaw Category Archives - Page 13 of 14 - South Florida Injury Lawyer Blawg Published by Miami Accident Attorneys

The Causation Presumption in Rear End Automobile Accidents in Florida

Published on: August 21, 2014 | by Law Offices of Robert Dixon

Rear end accidents happen frequently in the state of Florida and throughout the United States. In some situations, state law presumes that a rear end auto accident is caused by the rear driver in the accident. This assumption arises due to the idea that the rear driver should leave ample room between his or her car and the car ahead so that there is enough room to stop without causing an accident.

In Sorel v. Koonce, the plaintiff was rear ended by a driver who was operating a Comcast van. The plaintiff was in the car with her husband, who was driving the car, and her child, who was seated in the backseat at the time of the accident. According to the plaintiff, they were about to make a left turn when an oncoming driver ran a red light, prompting them to suddenly hit the brakes. This is when the Comcast van driver rear ended their vehicle. The plaintiff subsequently sued the driver as well as Comcast for her injuries.

The trial court denied plaintiff’s request for a directed verdict. The jury ultimately concluded that the Comcast van driver’s negligence did not cause the plaintiff’s injuries. The plaintiff then filed a motion seeking a new trial. Continue Reading ›

Understanding the Seat belt Defense in Florida Automobile Accidents

Published on: August 13, 2014 | by Law Offices of Robert Dixon

In a car accident, you are much more likely to be injured if you are not wearing a seat belt. This is precisely why Florida has mandatory seat belt laws. Seat belt laws apply to all automobiles including pickup trucks and vans on the road. All passengers in the front seat must wear a seat belt and all passengers under 18 must wear a seat belt. In Florida, there are legal consequences for not wearing a seat belt.

When an individual is driving without a seatbelt, they increase their risk of injury in case of an accident. Florida law follows the doctrine of comparative negligence which means if you contribute to the accident then the amount you would otherwise recover in damages may be reduced in proportion to your fault. For example, if you are deemed 20 percent responsible for the accident then your maximum recovery will be 80 percent of the total damages. Comparative negligence states aim to hold each party responsible in relation to their fault, no more, no less.

If you’ve been in a collision and there is evidence that you were not wearing your seat belt at the time, then the defendant or the insurance company can point to the fact that your injuries were at least partially your fault. In other words, the defendant can use the seat belt defense to lessen their own responsibility. In Ridley v. Safety Kleen Corporation, the Florida Supreme Court held that the failure to use a seat belt “would henceforth be raised by an affirmative defense of comparative negligence.” Continue Reading ›

In Florida, Comparative Negligence Questions Should be Determined by a Jury

Published on: August 13, 2014 | by Law Offices of Robert Dixon

Under Florida law, property owners may be liable for injuries caused on their premises as a result of defective or faulty property conditions. The law, however, gives property owners a defense for dangerous conditions on the property that are “open and obvious.” This is because if a condition is open and obvious, the tenant or visitor can avoid it and prevent injury to himself or herself.

In Wieder v. King Cole Condominium Association, the plaintiff was walking in a common area of her condominium building when she tripped over an area of the carpet that had buckled. The carpet had just been cleaned by the building’s cleaning staff and was still wet at the time of the accident. As a result of the fall, she sustained injuries to her arm, hand, and neck.

According to the plaintiff, she and other tenants had sent numerous complaints to the condominium’s management alerting them to the potentially dangerous condition of the carpet. Even so, the carpet had not yet been repaired. The plaintiff filed a lawsuit against the condominium building under the theory of negligence. Negligence occurs when a defendant fails to take reasonable care when doing something that results in an injury to another person. Here, the plaintiff alleged that the condo association had violated its duty to keep the common area safe for tenants. Continue Reading ›

The “Open and Obvious” Danger Doctrine in Florida

Published on: August 13, 2014 | by Law Offices of Robert Dixon

Throughout the United States and the state of Florida, a number of people are injured every year through the use of dangerous products. Injuries can arise in a number of ways, from the user using the product incorrectly to the manufacturer failing to provide proper instructions. Injuries can range from minor to severe, and in the worst cases even death can happen. Under Florida law, if a user is injured because a manufacturer or seller negligently failed to ensure the user was aware of the potentials risks and hazards associated with the product, the manufacturer or seller may be held liable for the user’s injuries.

In Rodriguez v. Akal Security, the plaintiff was being held at a processing center after illegally entering the country. During his time there, he was injured at the center’s gym when he fell off the “ProMaxima Hip and Dip Combo,” a piece of exercise equipment allowing users to do dips on one side and chip ups on the other. The plaintiff was having trouble reaching the side of the machine used to do chin ups and decided to climb to on the side used for dips in order to reach the chin up bar. While attempting to reach the chin up bar, the plaintiff fell and sustained injuries. Akal Security provided security for the processing center at the time, and an Akal employee had seen the plaintiff climbing over the equipment but had failed to intervene.

The plaintiff sued Akal for negligence, alleging that its employees should have warned him about the potential dangers of the equipment. The U.S. District Court granted the defendant’s motion for summary judgment, holding that the plaintiff had failed to establish a case for negligence under Florida law. The court noted that there is no duty to warn of an obvious condition, such as in this case. Continue Reading ›

Plaintiffs in Negligence Cases Must Establish the Duty of Care – Downs v. U.S. Army Corps of Engineers

Published on: August 5, 2014 | by Law Offices of Robert Dixon

When you’ve been injured due to someone else’s carelessness, you can typically file a negligence lawsuit to seek financial compensation for your injuries. Negligence is the failure to take reasonable care in one’s actions or omissions that causes harm or injury to another. Put another way, negligence is the failure to do something properly that results in damage to someone else. Under Florida law, a personal injury lawsuit must be filed within four years from the date of the accident.

In order to establish negligence a plaintiff must prove the following elements: 1) the defendant owed plaintiff a duty of care; 2) the defendant breached the duty of care owed to plaintiff; 3) the defendant’s breach caused the accident; and 4) the plaintiff suffered harm or injury as a result. Generally, a duty of care arises when one person undertakes an activity that could potentially harm another. For example, a duty of care exists from one driver to another. The duty of care refers to the obligation of an individual to act in a way that a reasonably prudent person would act in the same or similar circumstances.

In Downs v. U.S. Army Corps of Engineers, the Court of Appeals for the 11^th Circuit held that a plaintiff suing a defendant under the theory of negligence must demonstrate the defendant owed that person a duty of care and that the defendant’s breach was the direct cause of plaintiff’s injuries. Continue Reading ›

When Waivers are Enforceable in Florida – Gillete v. All Pro Sports

Published on: August 5, 2014 | by Law Offices of Robert Dixon

When an individual is about to engage in recreational activities such as go-karting, sky diving, zip-lining, para-sailing and other physically rigorous activities, that individual will usually be asked to sign a waiver. A waiver is a document which evidences the intentional relinquishment of a right, claim or privilege. A waiver essentially communicates the fact that the person undertaking the activity understands that he or she may get hurt or killed and, if that happens, the entity hosting or administering the activity will not be liable. Business establishments use waivers to relieve themselves of liability in the event of an accident or injury. Most states have their own laws governing the clarity requirements of waivers. In the state of Florida, waivers must be sufficiently clear in order to be enforceable.

In Gillette v. All Pro Sports, the plaintiff was injured at a recreational go-karting facility known as All Pro Sports. The plaintiff claimed that an All Pro Sports employee increased the speed of the go kart, causing her to lose control of the vehicle and crash into the railing. The plaintiff subsequently sued All Pro Sports for her injuries under the theory of negligence.

The trial court granted the defendant’s motion for summary judgment, finding that the waiver and release from liability that plaintiff had signed was enforceable. The court noted that in order for a waiver to be effective, “the wording of such clauses must be so clear and understandable that an ordinary and knowledgeable person will know what she or he is contracting away.” Here, the trial court concluded that the terms and language of the waiver were clear enough for the plaintiff to understand and consent to. Continue Reading ›

Car Owners May be Liable for Driver’s Carelessness Under the “Dangerous Instrumentality Doctrine”

Published on: August 1, 2014 | by Law Offices of Robert Dixon

Every year, thousands of people are injured on Florida roads, and tragically some are even killed. Unfortunately many of these accidents could have been prevented if the driver exercised reasonable care behind the wheel. While liability is clear when a negligent driver gets into an accident, what happens when a car owner lets another person drive his or her car and that person causes an accident? In this situation, Florida law allows the injured party to take legal action against both the driver and the car owner under the dangerous instrumentality doctrine, which is rooted in negligence.

The dangerous instrumentality doctrine is a common law rule that holds the owner of a fundamentally dangerous tool responsible for any injuries caused by the use of that tool. The doctrine applies to motor vehicles in that car owners may be responsible for any damages suffered by third parties as a result of negligent driving of the car, when the car is driven with the owner’s knowledge and permission.

In Roman v. Bogle, the lawsuit arose from a tragic car accident in which the driver and his passenger were killed when the car ran a red light and was hit by a truck. The passenger’s mother (Roman) filed suit against the driver’s estate as well as the driver’s father (Bogle), claiming that the father, as the owner of the car, was liable under the dangerous instrumentality doctrine. It is important to note that Bogle was not in the car at the time of the accident. Continue Reading ›

Negligent Infliction of Emotional Distress in Automobile Accident Cases under Florida Law

Published on: July 28, 2014 | by Law Offices of Robert Dixon

A car accident victim typically has many ways to recover for injuries sustained in the accident. Typically a person will file a claim under the theory of negligence, but, depending on the circumstances of the case, an individual may pursue a negligent infliction of emotional distress (NIED) claim as well.

In Seybold v. Clapis, the United States District Court for the Middle District of Florida explained NIED in the context of car accidents. The plaintiffs in the case were a husband and wife, John and Mandy Seybold, who were with their children at a Disney resort at the time of the accident. John Seybold was checking out of the hotel while Mandy Seybold accompanied her children to their vehicle. The children were seated inside the car while Mandy Seybold stood behind the vehicle. At this time, Mandy Seybold was hit by defendant Victor Clapis’ car, which ended up pinning Ms. Seybold between the two vehicles. Mandy Seybold began to scream. Clapis, however, put his car in park, leaving Mandy Seybold stuck between the two cars. Ultimately, a bystander moved the Seybold’s vehicle to free Mandy Seybold. No Disney employees came to the aid of Ms. Seybold.

The Seybolds sued Clapis as well as the Disney resort under the theory of NIED on behalf of John Seybold and their two children. Disney filed a motion to dismiss the claim arguing the Seybolds did not have a viable NIED claim. Continue Reading ›

What is “Fraud on the Court” in Florida – Suarez v. Benihana

Published on: July 28, 2014 | by Law Offices of Robert Dixon

As with other types of lawsuits, witness testimony and issues of credibility can make all the difference in a personal injury proceeding. However, a recent case reminded us that mere contradictions and discrepancies in depositions do not rise to the level needed to dismiss a lawsuit on the basis of fraud on the court.

In Suarez v. Benihana Nat. of Florida Corp., the plaintiff, Suarez, and his family were injured at a Benihana restaurant when they were allegedly struck by other customers at the establishment. Suarez and his family had finished their meal and were waiting for their car to be obtained by valet staff when another diner started a verbal fight with Suarez. The altercation ceased for a few minutes until two other individuals came out of the restaurant and joined their friend, the first verbal attacker. The verbal altercation started again and soon escalated into a physical one. Ultimately, Suarez was beaten by three men, each of whom was charged with assault and battery.

The Suarez family later sued the Benihana restaurant, alleging the establishment failed to provide adequately security for its patrons. A trial court granted the restaurant’s motion to dismiss the complaint, stating that the plaintiffs had committed fraud on the court by providing false and misleading information. Continue Reading ›

Social Media and Your Personal Injury Case – Root v. Balfour Beatty Construction

Published on: July 21, 2014 | by Law Offices of Robert Dixon

Social media accounts seem to reveal a lot about a person’s life. You may not realize that what you post online could be subject to court analysis in criminal cases and civil cases, such as personal injury claims. It has long been established that persons or entities against whom you file a personal injury lawsuit can ask the court to grant permission to use your Facebook statuses, likes, tweets, photos, comments, videos, and other relevant evidence in a particular case.

In Root v. Balfour Beatty Construction, LLC, a three-year-old boy was the victim of a hit-and-run pedestrian accident near a construction zone. The small child was being pulled in a wagon by his aunt when he ran out of the wagon and across the construction zone before being hit by an automobile. The vehicle driver failed to stop and dragged the boy for a few feet. As a result, the child suffered extensive injuries, including permanent neurological damage.

The automobile driver was arrested and subsequently sentenced to 20 months in prison. Continue Reading ›