South Florida Injury Lawyer Blawg

Florida Product Liability Claims Based on a Product’s Design Defect

Published on: December 15, 2020 | by Law Offices of Robert Dixon

Under Florida law, defective product lawsuits are typically classified under design defects, manufacturing defects, or failure to warn defects. Courts generally analyze these cases under a strict product liability theory or negligence theory. Unlike negligence cases, strict product liability does not consider a party’s intent; instead, plaintiffs must only establish that the product was defective. In some instances, the theories may overlap; however, the overwhelming majority of claims fall under strict product liability.

Florida product liability lawsuits typically fall under three categories, depending on the problem with the product and the manufacturer’s conduct. Claims may stem from design defects, manufacturing defects, or marketing defects. Design defect claims arise when a claimant argues that a product is inherently dangerous because of its design. Generally, claimants must establish that the product does not meet the “consumer expectation test,” which indicates that a product is unreasonably dangerous if it does not perform as a reasonable person would expect it to. Marketing defects occur when a manufacturer or anyone in the production chain fails to provide adequate warnings or instructions. In these cases, claimants may argue that the lack of warnings made the product unreasonably dangerous. Finally, manufacturing defects arise when a product’s design is inherently safe, but an error occurred during production that made the specific product unsafe.

All of these claims base liability on whether a product is “unreasonably dangerous”. Although the term is somewhat vague, courts tend to define an unreasonably dangerous product as more dangerous than an ordinary consumer would contemplate the product to be. For example, recently an appellate court issued an opinion addressing whether a product was unreasonably dangerous. In that case, the plaintiff was working on a trailer manufactured by the defendant. While loading the dump trailer, he stepped, and his hands slid off the top of the trailer, causing him to fall and suffer injuries. He argued that the manufacturer was strictly liable and negligent in designing and manufacturing an unreasonably dangerous product that lacked safety features. He presented expert testimony that the width of steps and spacing did not comply with safety standards. Ultimately, the appellate court found that the lower court erred in ruling in favor of the defendant, because there was a genuine issue of material fact regarding whether the product was unreasonably dangerous.

Court Hears Grocery Store Slip and Fall Case Discussing Manger’s Failure to Warn Customer of a Discovered Hazard

Published on: September 22, 2020 | by Law Offices of Robert Dixon

Recently, a Florida appellate court issued an opinion in a plaintiff’s appeal stemming from a premises liability lawsuit. The case arose after a customer spilled laundry detergent near a checkout counter at a Dollar General. A store manager and employee were working at the register when the spill occurred. The manager went to get cleaning supplies and left the employee to assist customers in checking out. About a minute later, the plaintiff entered the store and slipped on the detergent, sustaining serious injuries.

The plaintiff argued that the defendant was negligent because they did not safely maintain their premises or warn him of potential hazards. The defendant moved for summary judgment claiming that it did not breach its duty because there was not enough time between the spill and fall to remedy the hazard.

Under Florida law, courts reviewing summary judgment motions must draw all inferences in favor of the plaintiff against whom the order is sought. Courts can only grant these motions when there are no disputes regarding any genuine issues of material fact. In instances where a defendant moves for summary judgment, the defendant must show that it did not breach any duty to the plaintiff. In Florida, business owners owe a duty to maintain their premises in a safe condition and warn customers of any dangers it knew about, or should have known about.

Proving Liability in a Florida Car Accident Lawsuit

Published on: September 22, 2020 | by Law Offices of Robert Dixon

After someone is injured in a Florida car accident, they may pursue a claim for damages against the at-fault party by filing a personal injury lawsuit. Although, these cases may seem straightforward, defendants (and their insurance companies) will go to great lengths to avoid liability. Often, defendants who are uninsured or underinsured will try to avoid liability because they can be on the hook for substantial damages if they are found to be responsible. Florida car accident victims should consult with a personal injury attorney to help them through the various stages of collecting compensation.

The first part of a car accident claims involves investigating the accident. A Florida accident attorney will conduct a detailed, in-depth investigation to determine whether the facts support a claim for recovery. To determine whether a claim is viable, the attorney will determine who was at-fault, what injuries the victim sustained, and whether the parties involved have insurance. The central part of this step requires attorneys to review evidence such as police reports, physical evidence, eyewitness testimony, and expert witness affidavits. In some cases, defendants will encumber the plaintiff’s ability to engage in an investigation.

For example, a recent Florida news report described a situation where a driver refused to allow investigators access to her car. Police reports indicate that the driver is accused of striking and killing a 16-year-old biker. The driver was previously cited for violating the conditions of her learner’s permit and failure to use a signal. The plaintiffs, who are the deceased accident victim’s surviving loved ones, are requesting that the defendant provide access to the car so that they can retrieve information from the vehicle’s “black box.” This event data recovery device may hold significant evidence regarding the circumstances of the accident. However, the allegedly at-fault driver is failing to respond to communication requesting access. It is unclear why the traffic homicide investigators failed to download the data when they were initially investigating the accident. In these cases, it is critical to retain an attorney to ensure that the other party follows all relevant evidentiary laws and abides by their duty to preserve evidence.

Court Finds in Favor of Plaintiff in Florida Cruise Ship Lawsuit

Published on: September 22, 2020 | by Law Offices of Robert Dixon

A Florida appellate court recently issued an opinion in a lawsuit stemming from head injuries a three-year-old girl suffered after falling through a guard rail on a cruise ship. Evidently, the girl’s mother filed a lawsuit against the cruise line, claiming that it was liable for the negligent creation and maintenance of the guard rail, and its failure to warn of the danger. The trial court found in favor of the defendant, reasoning that there was no evidence that the cruise ship had actual notice of the specific alleged risk-creating conditions.

The plaintiff appealed on several issues, including a claim that there was a genuine issue of material fact regarding whether the defendant should have known that children could climb through the guard rail and fall. The record indicated that there were questions of fact regarding exactly how the girl fell; however, the complaint stated that the guard rail posed a risk of falling to children because children could pass or climb through a gap in the rails and fall to a lower deck. On appeal, the plaintiff argued that the lower court failed to view the evidence in a light most favorable to the plaintiff, which it must do in a summary judgment motion.

Under the law, evidence that a cruise ship owner took corrective action can establish notice of a hazardous condition. Corrective actions include warnings to passengers about a danger that a situation poses. However, there must be a connection between the warning and the condition. In this case, a passenger testified that crew members conducted a safety drill at the beginning of the cruise, where they warned people not to climb up on the rails or sit on them. She also testified that crew members explained that there had been passengers that had fallen off.

Appellate Court Addresses Duty of Care in Wrongful Death Lawsuit Against Florida Lodge

Published on: September 22, 2020 | by Law Offices of Robert Dixon

Recently, a state appellate court issued an opinion in a Florida wrongful death lawsuit against a hospitality company. The trial court granted the defendant’s motion for summary judgment, and the plaintiff appealed.

According to the court’s opinion, the resort provided guests with a shuttle service to take them to various locations within two miles of the lodge, including across U.S. Highway 1. Additionally, it provided guests with a golf cart service to take guests around the property; however, the golf carts were prohibited from traveling on public roads. There was an exception that allowed the golf cart to cross Old Highway 1 to pick up and drop off guests on the east side of U.S. Highway 1.

The case involved a guest at the hotel lodge who got into a golf cart and asked a staff member for a ride. The staff member agreed, but did not know the man’s destination. However, while they were in the cart, the man asked the staff member to take him to the trading post on U.S Highway 1. Following the hotel’s policy, the staff member drove the guest across Old Highway 1, about twenty feet from U.S. Highway 1. As the guest was exiting the golf cart, a vehicle hit him. He died shortly after filing a negligence lawsuit against the vehicle driver and lodge. The executor of the man’s estate amended the complaint to assert a wrongful death claim against the defendants.

Florida Court Addresses Credibility of Treating Doctor in Uninsured Motorist Lawsuit

Published on: September 22, 2020 | by Law Offices of Robert Dixon

Recently, an appellate court issued an opinion in an appeal stemming from a woman’s claim for uninsured/underinsured(UM) coverage against her insurance company. The woman suffered injuries in a car accident and subsequently filed a negligence claim against the at-fault driver, the owner of the vehicle, as well as a UM claim against her insurance provider. After settling the claims with the driver and car owner, the case proceeded against her insurance provider. The trial court granted the woman’s motion for a directed verdict. The insurance company appealed, arguing that a directed verdict was inappropriate and the case should proceed to a jury trial.

The woman argued that she suffered several injuries due to the accident, but the specific issue in the appeal revolves around injuries to her left knee. The evidence indicates that the woman suffered injuries to her knee while attending the Naval Academy and again while walking. About two months before the accident, the woman underwent surgery for a torn meniscus. She reported that her knee was improving until the car accident. The woman sought treatment from numerous doctors until she found one that would treat her under a letter of protection.

A letter of protection is an agreement between a patient who does not have insurance and a health-care provider. This document provides that the medical provider agrees to a deferred payment while the client is involved in a court case. In most cases, the patient is still responsible for the provider’s bill, regardless of the outcome of their lawsuit.

Pursing a Florida Bad Faith Claim Against an Insurance Company

Published on: September 22, 2020 | by Law Offices of Robert Dixon

Under Florida law, insurance companies must act in “good faith” when addressing and resolving an insurance claim made against a policy. However, in many cases, insurance companies fail to do this. Through a Florida bad faith claim, state law provides policyholders with an avenue to seek restitution if they believe that an insurance company has engaged in bad faith practices when attempting to resolve a claim.

Bad faith claims arise if an insurance company breaches its duty to recognize a claim, investigate a claim promptly, respond appropriately to communication requests, act efficiently, or offer valid reasons for a delay or denial. There are generally two types of Florida bad faith claims, first-party and third-party claims. First-party claims occur when an insurance company has a contractual duty to pay benefits to its policyholder. Whereas, third-party coverage protects the policyholder in cases where they may be liable for injuries and damages to a third-party.

Under the law, policyholders who are asserting a bad faith claim must provide the insurance company with a notice of the statutory violation. After receiving the notice, the law provides the insurance company with an opportunity to cure the violation, by paying the claimant’s damages. If the company cures the violation within the time frame, the bad faith claim becomes irrelevant. However, if the company fails to respond, the courts will presume that the plaintiff’s assertion is true.

Florida Court Finds in Grocery Store’s Favor in Recent Slip and Fall Case

Published on: September 22, 2020 | by Law Offices of Robert Dixon

Last month, a state appellate court issued an opinion in a Florida slip and fall case involving a woman who fell while at a grocery store. The case required the court to determine if the woman presented sufficient evidence to show that the store had constructive knowledge of the hazard that caused her fall. Ultimately, the court found that the plaintiff could not succeed in her claim because the evidence did not suggest that the danger was present for a sufficient period of time to impute constructive knowledge of the hazard to the store.

Florida slip and fall cases are based on the legal theory of negligence. Thus, a plaintiff must prove that the defendant knew or should have known about the hazard. If a defendant is entirely unaware of a hazard, courts will generally not find that the defendant was negligent in failing to address the risk. There are two ways to prove a defendant’s knowledge of the hazard. The first is by showing that the defendant had actual knowledge of the hazard. This may be demonstrated by submitting a previous customer complaint about a hazard.

Constructive knowledge is the other way that a plaintiff can prove the defendant knew about the dangerous condition that caused their fall. Constructive knowledge is essentially a legal fiction that, when present, imputes knowledge of a hazard to a defendant. In Florida, there are two ways to establish constructive knowledge, 1.) by showing the amount of time that the hazard was present or, 2.) by showing that the dangerous condition occurred so often that the defendant should have known of its existence.

Governor Releases List of Florida Nursing Homes with Positive COVID-19 Cases

Published on: September 22, 2020 | by Law Offices of Robert Dixon

According to a recent news report, after increasing pressure from residents, Florida Governor Ron DeSantis released a seven-page list of the names of over 300 nursing homes where patients or staff tested positive for COVID-19 (the coronavirus). These nursing homes and long-term care facilities serve a diverse patient base, and provide various types of acute, rehabilitative, and convalescent care. Despite good intentions, many of these nursing homes fail to provide their patients with an appropriate level of care. In some cases, this deficient care amounts to nursing home abuse and neglect, and victims and their families may be able to hold the facility liable for their damages.

According to recent statistics, as many as 5,000,000 individuals suffer abuse or neglect at these facilities every year, and evidence suggests that 1 in 10 of these victims are over 60 years old. Abuse and neglect manifest in many different ways, and it is not always apparent to loved ones. It may take the form of physical, emotional, or sexual abuse. Further, many patients suffer neglect when the facility fails to provide the patient with appropriate care or prevent the spread of disease or infection. Many facilities are facing a heightened level of scrutiny after facilities began to face outbreaks of COVID-19.

Understandably, many families whose loved ones receive care at these facilities began to demand the release of names of facilities with positive cases. Residents and loved ones requested the list of names so that they could make informed decisions about how to proceed with the care of their family members. Before this request, the facilities only needed to provide residents, staff, and family members when there was a positive result. However, the list did not include any context regarding what the actual outcome of the positive result was.

Causation in Florida Chain-Reaction Car Accidents

Published on: July 1, 2020 | by Law Offices of Robert Dixon

The majority of Florida car accidents involve a collision between two vehicles; however, accidents involving more than one vehicle tend to cause the most severe injuries and damages. In many cases, the force of the first impact leads to a series of additional accidents. Identifying the parties, establishing fault, and apportioning liability is often complex in these cases because the sequence of events may not be clear. It is crucial that Florida car accident victims contact an attorney if they have suffered injuries in a chain-reaction accident.

Identifying all of the individuals involved in a chain reaction accident can be difficult because the degree of injury and damage often vary. In some cases, a party that only suffered minor damages may leave the scene of the accident without providing their information. Further, in some situations, the initiating driver may flee the scene for fear of liability.

Establishing fault is a critical part of recovering after a Florida chain reaction accident. Individuals who file an insurance claim or personal injury lawsuit against another driver will need to establish liability. This requires that the injury victim present evidence of the series of events that led to their injuries. To maximize the chances of recovery, injury victims should identify all of the parties involved, including the motorist that began the chain of events. Florida injury victims can accomplish this by collecting eyewitness accounts of other motorists, passengers, and pedestrians, reviewing police reports, and assessing vehicle damage.