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In the height of this holiday shopping season, patrons should feel safe when they get to the store. That means there should be adequate security and lighting. Boxes should be safely stacked. Spills should be promptly cleaned up. Employees should be regularly checking the site for possible hazards to minimize the risks. 

Property owners owe business invitees the highest duty of care to make sure the site is free of unreasonable hazards. However, if a patron does encounter a danger and is injured as a result, he or she will still face challenges in asserting liability and obtaining compensation. Specifically as it pertains to slip-and-fall hazards, F.S. 768.o755 spells out the stringent proof burden plaintiffs have to meet in order to prevail in an injury lawsuit against a business. In these cases, plaintiff has to show:

  • The business had actual knowledge of the dangerous condition.
  • The dangerous condition existed for such a length of time that, had the business been using due care, the business establishment should have known about it.
  • The condition occurred with regularity and was therefore foreseeable.

Continue reading →

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Florida Statute 767.04 imposes strict liability on dog owners for bites inflicted on others, no matter whether the dog was known to be vicious or whether the owner had knowledge of such viciousness. 

Strict liability means the owner can be held responsible to pay for damages caused by the bite, even if the owner didn’t do anything wrong. All that has to be shown is that defendant owned/ had control of the dog, the dog bit the plaintiff and plaintiff suffered injuries.

In the recent case of Arellano v. Broward K-9, Florida’s Third District Court of Appeal was asked to weigh whether a plaintiff in a dog bite case was precluded in her dog bite claim against defendant due to her own actions, which defendant asserted were the superseding and intervening cause. The appeals court reversed the trial court’s summary judgment in favor of defendant, citing the strict liability portion of the state’s dog bite law.  Continue reading →

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A man using chemical paint remover was seriously injured when the substance ignited and burned him. He and his wife filed a product liability lawsuit against the manufacturer of that chemical, alleging the warning labels were inadequate and the product was defectively designed. 

A federal district court in Illinois granted summary judgment to defendant in Suarez v. W.M. Barr & Co. on both of these counts. Recently, though, the U.S. Court of Appeals for the Seventh Circuit reversed in part. Specifically, the court ruled that while the label on the product did accurately describe the primary risks for consumers, there was a genuine issue of material fact as to whether the product was defectively design based on theories of strict liability and negligence.

Strict product liability is a legal rule that holds sellers, distributors and/ or manufacturers of defective products liable to the person injured by that product, regardless of whether defendant was negligent. In a claim alleging negligence, a defendant’s standard of conduct is central to proving liability. That is, defendant acted in a way that fell below the standard of reasonable conduct. In strict liability cases, however, the idea is that it doesn’t matter how defendant acted. Instead, what must be shown is that the product was in unreasonably dangerous condition, the seller expected/ intended the product would reach the consumer without changes and plaintiff was injured by defective product.  Continue reading →

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Cruises are a popular vacation option for those who want to relax, not worry too much about organizing the details. However, what many people don’t understand is that when they are on a cruise, they are in muddy legal territory in which they may have limited protections to pursue compensation if they suffer personal injury or loss of life.

Most cruise lines are shielded from certain claims of liability based on the waiver printed on the back of each passenger’s ticket. Boarding of the ship with that ticket is viewed as acceptance of the terms.

While cruise ship injury lawsuits can prove more challenging, these companies aren’t immune. There are a number of instances in which cruise lines can be held liable. A number of injury and wrongful death lawsuits recently filed in Florida are illustrative of the fact that it can still be worth it to pursue litigation. Continue reading →

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There is a lot of anxiety that comes along with being a new parent. One of those sources of anxiety shouldn’t be the doctors and nurses trusted to take care of your baby.

Unfortunately, severe birth injuries and infant deaths caused by medical malpractice are more common than some people think. The Florida Department of Health Bureau of Vital Statistics reports that between 7 and 8 of every 1,000 births in Florida results in fetal death. In the U.S., 27 out of every 1,000 births results in a birth injury. That means three babies born every hour suffer a birth injury, which amounts to 2,000 a month nationally.

Recently, the parents of one of those children have filed a lawsuit against a hospital, a doctor, two medical service providers and a nurse – all of whom they allege are liable for injuries to their newborn son, who was delivered 10 weeks early in 2015. This was the couple’s third child, and the mother developed a medical condition that resulted in her being forced to have the baby boy delivered by emergency Cesarean. Being premature, the boy suffered from digestive issues. According to WYFF NBC-4, the baby was transferred to a hospital in Greenville. Doctors recommended he be transferred to another location in Charlotte, but the family wanted him to be treated in Greenville because it would allow them be closer to their other two children until the boy was strong enough to go home. Continue reading →

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Florida’s 2nd District Court of Appeal has joined the 4th DCA in its finding that damage caps in medical malpractice injury lawsuits are unconstitutional. These damage caps, enacted by a 2003 overhaul of state law by then-Gov. Jeb Bush, limit the amount of money injury plaintiffs can receive for pain and suffering when medical malpractice results in a serious personal injury. 

The Florida Supreme Court is still reviewing the 4th DCA’s finding in a similar case, North Broward Hospital District v. Kalitan, in which the hospital is appealing the court’s finding that damage caps shouldn’t apply to injury lawsuits stemming from the breach of care acceptable care standards by doctors, nurses and other health care workers.

This conflict between the appeals court rulings and the law come after the Florida Supreme Court’s 2014 decision in McCall v. U.S., in which justices ruled non-economic damages in medical malpractice wrongful death lawsuits are not constitutional. So the sticking point in the current cases is whether that also extends to injury cases, where plaintiff did not die. Continue reading →

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The Florida Supreme Court recently ruled in the Orlando negligent security lawsuit of Anderson v. Hilton Hotel that plaintiff is entitled to have his attorney’s fees covered, per F.S. 768.79 and Fla. R. Civ. P. 1.442.

Plaintiff’s victory comes after he won $1.7 million in damages from four different defendants, though three of those were characterized as a single entity during trial. It was this issue that complicated the matter of whether plaintiff was entitled to attorney fees.

Normally, personal injury plaintiffs do not pay attorney fees upfront. Instead, lawyers offer services on a contingency fee basis, which means clients pay nothing upfront and agree to sign over a portion of their damage awards if they win (usually somewhere around 30 percent, though it varies depending on the facts/ complexity of the case). This type of agreement allows more meritorious civil actions to make their way into court, rather than creating an impossible bar for persons with limited means. However, there are situations in which the other side can be ordered to pay attorneys’ fees to the winner. For a plaintiff, this occurs when a reasonable settlement offer is made, not accepted within 30 days and then plaintiff wins the case, being awarded in excess of 25 percent of that original offer.  Continue reading →

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Jurors in Georgia awarded $5 million to a woman who suffered a paratransit van fall that caused her to lose her left arm and rendered her right arm useless. 

Deliberations lasted about 7 hours before finding the company that operated the non-emergency transport van was partially responsible for the 2012 accident that prompted the lawsuit, Smith v. Logisticare.

At the time of the incident, plaintiff was a left leg amputee and she was traveling in defendant’s van to get to a dialysis appointment. She reportedly was not properly secured into the van, and fell out of her wheelchair when the van hit a pot hole. Because she was not properly belted into position. Crush fractures suffered to her arms necessitated her left arm be removed and her right arm no longer functional.  Continue reading →

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Waivers of liability can be difficult to overcome in personal injury cases. Often, proof of simple, ordinary negligence will not be enough. Instead, what must be shown is proof of gross negligence.

Gross negligence occurs when there is some kind of blatant violation of or clear indifference to a legal duty toward the rights and protection of others. It’s a kind of flagrant and conscious disregard for the use of reasonable care. It doesn’t mean showing the accident/ injury was intentional, but rather showing an extreme lack of care that is likely to cause foreseeable, serious harm to someone else. In some cases, an assertion of gross negligence will support a recovery of punitive damages too, though there usually needs to be evidence of willful, wanton misconduct.

In the case of Anderson v. Fitness International LLC, the question was whether plaintiff had sufficiently proven gross negligence to overcome the protection that his signed waiver of liability had afforded the defense. A California appeals court ruled: No. Continue reading →

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Jurors in California have awarded $19.7 million in damages to the parents of a young boy who shot himself in the head with a loaded gun that was left out near a toy box by his great-grandfather. 

Although the boy survived the gunshot between the eyes, he suffered severe and permanent brain damage. Now 8-years-old, he needs 24-7 medical care and assistance with daily activities.

As the personal injury lawyer representing the boy’s parents explained the damage amount was reached via careful consideration of not just the pain and suffering of the actual shooting, but a meticulously-crafted life care plan that takes into account his medical bills, the cost of previous surgeries, the kind of care he will need in the future, the lost wages he has suffered, the lost wages his parents have incurred and the loss of life events, like having a relationship with his parents or ever starting a family of his own. The damages will be placed in a special trust that will be drawn from throughout the boy’s life to help cover his expenses. He is expected to incur $10 million in medical expenses over the course of his life. Continue reading →

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