South Florida Injury Attorney Blog
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In a dramatic shift from prior decisions, the Supreme Court of Arkansas recently released its opinion regarding the admissibility of seat-belt use evidence in civil lawsuits. The court found that the code that restricts the admissibility of a person’s failure to wear a seat belt violates the Arkansas Constitution.

street-296220_960_720The case arose from a 2011 car accident. Evidently, the petitioner/plaintiff was a passenger of a car driven by the defendant, who fell asleep at the wheel and caused an accident. The passenger brought a suit against the defendant, alleging damages for the injuries she suffered. The passenger also claimed that the driver was acting within the scope and course of his employment when the accident occurred, and she added the employer as a defendant as well. Both defendants filed answers that included the fact that the passenger was not wearing a seat belt as an affirmative defense. The plaintiff argued that the evidence should not be included because it violated a state statute that prevented such evidence. In turn, the defendants challenged the constitutionality of the state statute that restricts the admissibility of seat belt use or non-use in civil actions. Ultimately, the statute was held unconstitutional.

Applicability of the “Seat Belt” Defense in Florida

In the above case, the defendants attempted to use the seat belt defense in order to lessen the amount of damages for which they were liable. This defense has often been incorporated into various comparative fault systems. A number of states do not address the seat belt defense. However, Florida is one of the 15 states that allow a seat belt non-use defense.

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Earlier this month, an appellate court in Utah issued an opinion in a case that presented an interesting issue regarding when a minor can be held individually liable for their own negligent actions. Ultimately, the court determined that no minor under the age of five can be held liable for their actions, regardless of the level of negligence or recklessness involved. The case, importantly, did not comment on the potential liability of the parents of the minor.

baby-1093759_960_720Neilsen v. Bell:  The Facts of the Case

The Bells had a four-year-old son. When they were away for the evening, they arranged for Neilsen to stay with their son as a babysitter. Unfortunately, while the Bells were away, their son threw a toy at Neilsen’s face, hitting her in the eye. Neilsen, having previously had surgery on her cornea, ended up losing the sight in that eye as a result of the toy striking her.

Neilsen filed a personal injury lawsuit against the Bells, as well as against the young boy in his individual capacity. The lawsuit against the Bells proceeded under the legal theory of negligent entrustment, arguing that they were negligent in leaving their son with Neilsen. However, that claim was dismissed by the trial court and was not appealed by the plaintiff.

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Earlier this month, the Supreme Court of North Dakota issued an opinion in a premises liability case brought by a woman who was seriously injured when she fell to the ground after stepping on a rotten board at a county fairground. In the case, Woody v. Pembina County Annual Fair & Exhibition Association, the court determined that the fairground was not liable because they were entitled to immunity under the state’s recreational use statute.

fireworks-1550276What Is a Recreational Use Statute?

In general, owners of land have a duty to those whom they invite onto their property to keep the property safe and free of dangerous conditions that may result in serious injury or death. However, there are a few exceptions to this general rule, one of which being when the owner of the land opens up the land for free use to the general public for recreational purposes.

In Florida, the recreational use statute is designed to “encourage persons to make land, water areas, and park areas available to the public for outdoor recreational purposes by limiting their liability.” To do this, the law states that a land owner who opens up his or her land to the general public for recreational use “owes no duty of care to keep that area safe for entry or use by others, or to give warning to persons entering or going on that area of any hazardous conditions, structures, or activities on the area.”

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As a general rule, when a party gets an adverse result after going to trial, they are stuck with it. However, there is a big exception to that general rule, and that is when a party can point to an error made by the trial court – either in substantive law or procedure – and ask a higher court to review the decision. This process is called an “appeal.”

abstract-219915_960_720A recent case involving a road-rage accident shows how the trial court may get the law wrong at trial, and how an appeal can help remedy any injustice that occurred as a result.

Phillips v. Stear:  Road Rage Taken Too Far

In the case of Phillips v. Stear, the plaintiff was a truck driver who was involved in an accident when he was cut off by the defendant. The testimony presented at trial showed that the defendant swerved in front of the plaintiff, flashed an obscene gesture, and then abruptly slammed on the brakes. As a result of the defendant’s vehicle coming to a sudden slow-down in front of him, the plaintiff applied the brakes in a hurried fashion, lost control of the truck, and got into an accident.

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Trial judges are required to make numerous spur-of-the-moment decisions in each case. Many of these decisions involve whether certain evidence is admissible, whether a party’s request for a continuance should be granted, or whether a party’s motion should be granted. In each of these cases, if the trial judge comes to the wrong conclusion he or she may be reversed on appeal.

popcorn-707364_960_720Whenever a party loses a case, they may wish to appeal. This means that the court that heard the case loses jurisdiction, and a higher court reviews the issues presented during the subsequent appeal. However, before an appellate court will hear an appeal, the party requesting the appeal must show that they first presented the lower court with an opportunity to rule on the issue. Absent that showing, an appellate court will likely refuse to hear the appeal. That is exactly what happened in a recent case in front of the Eighth Circuit Federal Court of Appeals.

Stults v. International Flavors

In Stults v. International Flavors, the plaintiff filed a lawsuit against the manufacturer of microwavable popcorn. He claimed that he developed a lung disease after consuming between one to three bags of microwavable popcorn per day for twenty years. He cited recent studies indicating that the flavoring used to give popcorn a “buttery” flavor was shown to cause the very lung disease he was diagnosed with.

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Earlier this month, the Florida Supreme Court issued an opinion upholding a trial court’s ruling in favor of a plaintiff who filed a bad-faith claim against his insurance company after the insurance company initially refused to settle the plaintiff’s claim. In doing so, the court reversed the intermediate appellate court, which had held that the insurance company’s after-the-fact confession of judgment was binding against the plaintiff.

car-wrecked-845143_960_720Fridman v. Safeco Insurance Company of Illinois: The Facts

The accident giving rise to the case occurred in 2007, and involved the plaintiff and an underinsured motorist. Because the at-fault motorist was not adequately insured at the time of the accident, the plaintiff filed a claim with his own insurance company, under the “underinsured motorist” provision of the policy.

Initially, the insurance company failed to pay the claim. The plaintiff followed up, and by 2009 he had still not received a response. He then filed a bad-faith claim against the company pursuant to a state statute. The specific statute at issue allowed for an award to be issued in excess of the policy limit. However, the plaintiff still offered to settle the case for $50,000. The insurance company did not respond.

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In the past year, the doctors and scientists who study traumatic brain injuries have been garnering a significant amount of attention due to their findings related to brain injuries in athletes. One such injury is chronic traumatic encephalopathy (CTE). This injury became the focus of the media because of the realization that many professional athletes have been diagnosed, after their deaths, with suffering from this brain injury. However, as time passes, research has shown that CTE is actually much more common than most people realize, and even high school and college athletes have been diagnosed with brain injuries that may be linked to CTE.

brain-114065_960_720Chronic traumatic encephalopathy is a chronic degenerative disease that is often a result of repeated concussions and head trauma. This disease often leads to severe brain damage that can cause serious mental health and physical issues for those individuals suffering from it. Often, this disease affects professional athletes, specifically football players and other players of high-impact sports. This is because in these sports, athletes face repeated falls and head trauma, and in many cases these injuries are not adequately treated in the immediate aftermath.

A CTE diagnosis can cause people to exhibit signs of mental illness, such as erratic behavior, anger, depression, and suicidal tendencies. Unfortunately, up until very recently, CTE was only able to be diagnosed after the individual was deceased. However, there is some research that indicates that CTE may now be able to be detected prior to death. It has been noted that many players who were found to be suffering from CTE engaged in very dangerous and uncharacteristic behavior prior to their deaths.

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The U.S. Eleventh Circuit Court of Appeals recently decided to overturn the ruling of a federal district court judge in a negligence and product liability lawsuit filed against a gun manufacturer. The plaintiff in the case of Seamon v. Remington Arms Company was the widow of a man who was killed by a firearm while out deer hunting alone. The Court of Appeals ruled that the district court was mistaken to exclude the plaintiff’s proposed expert witness, who would testify that the gun had a design flaw that caused it to fire on its own and cause the man’s death.

to-be-a-target-1306531As the Hunter Lowered the Gun From a Hunting Stand, it Discharged on its Own

In November 2011, the plaintiff’s husband was hunting for deer in rural Alabama when he failed to return home. Family members searched for the man and eventually found him dead in his tree stand with a single bullet wound in his chest. Information from the most recent ruling revealed that the firearm was attached to a rope and had been at least five feet away from the man when it discharged because there was no gunpowder residue on the man’s body, which would usually be present in the event of a suicide or accidental discharge.

The decedent’s wife filed a lawsuit against the arms manufacturer in federal district court, and she offered the testimony of an expert witness who would testify that a specific manufacturing defect in the design of the trigger mechanism of the Remington Model 700 rifle that fired the shot that killed the man caused the gun to fire on its own while he was lowering the weapon from the tree stand. The expert noted that the defendants themselves have known that the Model 700 has fired unexpectedly “a number of times” in the past.

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wreck

Before a court can rule on the issues presented by a lawsuit, the court must first determine that it has jurisdiction over both the parties and the subject matter of the suit. If either is found lacking, the court does not have the power to adjudicate the case.

“Subject matter jurisdiction” refers to a court’s competence to hear a case in a particular category (regardless of the parties thereto), while “personal jurisdiction” means that the court has authority over a particular person or business.

In the recent case of Krisztian v. State Farm Mutual Automobile Insurance Co., the District Court of Appeal of the State of Florida for the Fourth District was called upon to determine whether the Circuit Court for the Fifteenth Judicial Circuit in Palm Beach County had personal jurisdiction over a defendant in a subrogation case arising from a car accident.

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Sign reading Smoking Area

Baseball legend Yogi Berra once said, “It ain’t over ’til it’s over.” Although Berra was talking about sports, the expression is equally true in the law. Procedural matters and other legal finagling can complicate a case to the point where it appears to be finished before it is even tried, but an appellate court may disagree and send the case back to the trial court for further proceedings.

Similarly, a large jury verdict may make it may seem that one party has surely prevailed over the other, but a higher court may set the verdict aside months or even years later. Ultimately, it is up to the appellate courts to decide, once and for all, when “it’s over.”

In the recent case of Phillip Morris U.S.A., Inc. v. Skolnick, a Florida appellate court determined that, despite legal proceedings dating back to at least 2002, a widow’s attempt at redress for her husband’s death was not over.

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