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A motorcyclist who was thrown backward onto the hood of a car driven by a motorist who failed to stop in time for a red light was not entitled to underinsured motorist coverage from the vehicle driver’s insurer.

It was an interesting argument made by the plaintiff in the case, as uninsured/ underinsured motorist coverage is typically paid by an insurer to its own insured and/ or occupants of that vehicle. It can also be paid to bicyclists or pedestrians by the insurer of the car that struck them because they are not required to have insurance to use the road. In this case before the Alaska Supreme Court, plaintiff alleged he should be entitled to the driver’s UIM coverage as an “insured occupant” because he landed on the car after impact. The liability limits of the vehicle driver’s insurance did not cover the full extent of his damages, essentially rendering the car driver uninsured.

The vehicle driver’s insurer then sued the injured motorcyclist for a declaratory judgment, arguing UIM coverage was not available to him.

The motorcyclist responded, arguing the issue wasn’t ripe for the insurer’s declaratory judgment and thus the court didn’t have any subject matter jurisdiction. He filed a counterclaim seeking his own declaratory judgment in his favor that would assert the coverage was available to him. The trial court found that it did have subject matter jurisdiction, granted both summary judgment and declaratory judgment in favor of the insurer and dismissed the motorcyclist’s third-party claim.  Continue reading →

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Unsafe sidewalk conditions such as uneven slabs and cracks can result in serious injuries from trip-and-fall, bicycle accidents and, it turns out, Segway accidents.

Recently in California, the San Diego Tribune reported the city council had agreed to approve a $1.5 million settlement with a woman who suffered a Segway accident injury while riding on a sidewalk. Her husband was also awarded $200,000 for loss of consortium. Segways, which can be rented across the Orlando area as well, are those two-wheeled motorized vehicles that can carry a single person standing upright. Plaintiff was reportedly injured when she drove a Segway over a large area of damaged and broken sidewalk in the summer of 2015. She suffered a shattered pelvis requiring emergency surgery and permanent metal plates. She still requires intense physical therapy and currently relies predominantly on a wheelchair for mobility now. She sought damages for pain and suffering and lost wages, while her husband sought compensation for loss of companionship.

The city initially defended itself, arguing in responses that plaintiffs were negligent, careless and the damage to the pavement was open and obvious and could have been avoided had they been using reasonable care. The city also filed a cross-complaint against the Segway tour guide business from which plaintiff rented the vehicle. Ultimately, that company didn’t contribute to the payout because the company lacked liability insurance at the time of the accident and the company had limited assets. The city is now working on an ordinance that would require Segway tour operators to carry liability insurance, as well as adhere to other safety regulations.  Continue reading →

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Following a work-related injury aboard Royal Caribbean’s Voyager of the Seas, a former employee successfully sued the company for negligence, unseaworthiness, failure to provide maintenance and cure, failure to treat, retaliatory discharge and breach of contract. She won $20.3 million in a jury verdict in the 11th Judicial Circuit court in Miami-Dade County. It’s likely Royal Caribbean will appeal the damage award, but the case is noteworthy not just for the amount of compensation but for the fact that this was an employee who successfully sued a former employer for work-related injuries.

The injury in question occurred while the vessel was in international waters (Spain’s, specifically). Plaintiff is a citizen of New Zealand. Royal Caribbean, though, is a U.S. corporation with headquarters based in Florida, so the 11th Circuit had jurisdiction. Normally in Florida worker injury cases, any employee would be required to pursue the exclusive remedy of workers’ compensation, as outlined by F.S. 440.01-440.60. This exclusive remedy is part of the “grand bargain” between employers and workers. Employees injured in the course and scope of employment don’t need to prove the employer was negligent to obtain no-fault benefits for medical expenses, a portion of lost wages (and some others), but in turn they cannot sue their employer for negligence. They also aren’t entitled to pursue damages like pain and suffering, mental anguish or loss of consortium.

So what makes this case different? It happened on a boat. More specifically, the incident falls under The Jones Act. Among other things, The Jones Act allows sailors and other crew members the right to seek damages from the crew, captain or ship owner in the event of injury. Employees of cruise lines injured while the ship is at sea may not be subject to the same workers’ compensation laws as those who are injured on land.  Continue reading →

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Urinary catheters are used in many medical settings to help patients with bladder dysfunction (or temporary inability, sometimes due to surgery or other conditions) to continuously drain urine. They can be inserted in men and women, and research has established they are used by between 15 percent and 25 percent of all patients at some point during a hospital stay (with greater prevalence among patients whose stays are longer). Most catheters are only intended for short-term use, under 30 days typically.

Although catheters can be medically necessary, they are invasive devices and serious problems can arise when they are used unnecessarily or aren’t removed when they are no longer needed. There are far too many instances wherein older patients with incontinence have catheters inserted when they medically don’t need it – simply for staff convenience. These devices are associated with a greater death risk – four times higher during hospitalization and twice as high three months after discharge.

Recently in Missouri, the family of a 52-year-old veteran soldier filed a medical malpractice lawsuit over what they say was a misplaced catheter. According to the Kansas City Star, the patient was living in a nursing home due to multiple sclerosis and a traumatic brain injury. He was being seen at a Veteran’s Affairs urology clinic for a condition called neurogenic bladder, which is a common complication of multiple sclerosis that can cause one’s bladder to be either underactive or overactive. Continue reading →

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A recent Florida slip-and-fall lawsuit ended in disappointment for the plaintiff after the Third District Court of Appeal affirmed summary judgment for defendant Costco on grounds the element of actual or constructive knowledge had not been established. 

Florida is somewhat unique in this requirement, since the legislature in 2010 introduced F.S. 768.0755. Generally, dangerous conditions on a property subject the owner/ controller of that property to premises liability claims if someone is hurt on site. Plaintiffs in all cases need to show negligence, which involves proof that defendant owed a duty of care to plaintiff, defendant breached that duty, the breach caused plaintiff’s injury and plaintiff’s injury resulted in monetary damages. Slip-and-fall lawsuits are a unique subcategory of premises liability claims in that they require evidence the property owner either knew about the dangerous condition or should have known about it and failed to act on it.

To prove actual knowledge, plaintiff must show defendant either created the condition or was expressly made aware of it. Most slip-and-fall lawsuits in Florida, however, are proven with evidence of constructive knowledge. This can be shown in one of two ways, per the statute: The condition existed for a long enough period of time that property owner should have discovered in the exercise of ordinary care or secondly that the condition occurred with regularity and was thus foreseeable. This provision applies only to cases that involve a business establishment wherein an invitee slipped and fell on a “transitory foreign substance,” meaning something that isn’t supposed to be present on the floor and the invitee wouldn’t expect to encounter it.  Continue reading →

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Florida is renowned for its water parks and theme parks – from the obvious draws like Disney and Universal Studios in Orlando to Tampa’s Adventure Island, Destin’s Big Kahuna’s Waterpark and Winterhaven’s Legoland. Amusement parks are big business in the Sunshine State, drawing in many millions of visitors (Disney World’s Magic Kingdom alone has more than 20 million visitors annually) who collectively pay billions for the experience. 

But with this benefit comes a huge responsibility: To keep visitors reasonably safe from foreseeable harms.

When businesses fail to do this and it results in a personal injury, it can be grounds for a premises liability lawsuit. Examples might include the failure to clean up a spill resulting in a slip-and-fall or the failure to properly manage a busy parking lot, resulting in a vehicle-versus-pedestrian accident.  Continue reading →

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The state supreme court in Idaho reversed a summary judgment granted in favor of a large retailer stemming from a slip-and-fall injury allegedly caused by a spill near a self-service carpet-cleaning machine rental station in the store. Justices ruled the trial court’s finding that the vendor might be liable for negligence – but not the retailer/ property owner – was improper, and that the injury lawsuit should be allowed to proceed to trial

The store had a vendor agreement with the company that owned the carpet cleaning machines for two years by the time of the fall. The vendor had similar agreements with several other companies, but this was the only one wherein these kiosks were completely self-serving (as opposed to having a store employee check customers out). The vendor did not train employees of this store in proper storage and maintenance, as it did at every other location. The machines instead were serviced by the vendor twice a month.

The store had a general slip-and-fall policy that was in place at the time plaintiff fell. The policy mandates employees keep an eye out for safety issues in the spaces where they work. Store workers were specifically told to conduct “safety sweeps” of areas that got a lot of foot traffic, to specifically watch for spills and to clean them up promptly whenever they were discovered. Continue reading →

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Caps on non-economic damages in medical malpractice lawsuits – set at $250,000 per incident under Gov. Jeb Bush – are unconstitutional. The Florida Supreme Court decided this soundly – first in the 2015 case of Estate of McCall v. U.S. (medical malpractice wrongful death cases) and again in 2017 with its ruling in North Broward Hospital District v. Kalitan (medical malpractice personal injury cases).

But hospitals in Florida have found a loophole to this in the form of arbitration agreements. This was recently underscored in a case decided by Florida’s Fourth District Court of Appeal. In Plantation General Hospital v. Belzi, the appellate panel reversed a $4 million damage award and remanded to the lower court for a recalculation of damages – specifically to be in accordance with the provisions of F.S. 766.207, which still allows the $250,000 non-economic damage cap in cases handled by “voluntary arbitration.”

The Belzi case involved the death of a 24-year-old wife and mother who lost so much oxygen during childbirth, she was left in a vegetative state and died three months later. Her family filed a wrongful death medical malpractice lawsuit against the doctor and the hospital alleging their medical negligence resulted in the young woman’s death. Her child, delivered via emergency c-section, survived.  Continue reading →

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In Florida, there are laws in place requiring certain entities to be equipped with automated external defibrillators (AED). Commonly called “shock devices,” they are instruments used to electronically “restart” a person’s heart once they have gone into cardiac arrest. Here in Florida, F.S. 1006.165 requires every public school district that is a member of the Florida High School Athletic Association to have an operational AED on school grounds, and schools must make sure all employees and volunteers who might reasonably be expected to use the device are appropriately trained to do so. F.S. 258.0165 encourages (but does not require) state parks to have a functioning one on site at all times. Other provisions of Florida’s Administrative Code require them in dentists’ offices, state-owned or leased facilities. 

Failure to abide these provisions could be grounds upon which to pursue a negligence claim if a facility or premises required to have an AED does not, resulting in a wrongful death that might otherwise have been prevented.

In a recent case out of California (where there are similar provisions), an appellate court ruled a landlord who leases  commercial space to the operator of a health facility (which are required by state law to carry AEDs) doesn’t owe a duty of care to ensure those devices are provided. Continue reading →

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If you are injured by a product – whether it’s a defective vehicle or a faulty power tool – proving the manufacturer (or anyone in the chain of distribution) liable involves (per the Third Restatement of Torts) the existence of alternative design the main test to ascertain whether a product is defective. This provision holds that a product is defective in design only when the foreseeable risk of harm posed by that product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller. 

However, many states have been highly critical of this test, and Florida is one of those places wherein it’s been explicitly rejected. In 2015, the Florida Supreme Court in the 68-page ruling of Aubin v. Union Carbide Corp. held that it would retain the approach of the Second Restatement of Torts (which does not place this additional burden on consumers). The court ruled that in some instances in strict liability claims, the Third Restatement might shield manufacturers from all liability for products that are unreasonably dangerous simply because an alternative design for that product might be unavailable – even when, in some cases, the product may be in defective condition that’s unreasonably dangerous to the user. Further, the Third Restatement runs contrary to case law precedent set in this state, the court held.

However, federal courts often still use this test (though state law may still be applied). But as a recent case before the Fifth Circuit Court of Appeals shows, there is still opportunity to prevail.  Continue reading →

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