South Florida Injury Attorney Blog
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A group of wrongful death plaintiffs received a favorable ruling in an opinion recently released by the Massachusetts Supreme Court in a DUI accident case. The court upheld a district court ruling allowing the plaintiffs’ lawsuit to proceed, rejecting the defendant’s arguments that the plaintiffs had submitted a non-compliant affidavit and that the case must be dismissed.

Shot GlassesPlaintiffs Sue Bar over Father’s Death in a Single-Car DUI Accident

The plaintiffs in the case of Bayless v. TTS Corp. are the children of a man who died in an accident after he had been drinking at a bar located inside a restaurant operated by the defendant. The plaintiffs’ lawsuit alleges that the bartender and staff at the restaurant continued to serve the victim alcoholic beverages after he was extremely intoxicated and before he would be driving home. According to the appellate opinion, the man was served at least 12 alcoholic drinks while at the bar, and the employees of the defendant continued to serve him after he was clearly intoxicated. The man then left the bar to drive home, but he lost control of his vehicle and crashed about two miles from his house. He died at the scene as a result of multiple traumatic injuries.

Business Owners’ Liability for Over-Serving Alcoholic Drinks

Many states, including Massachusetts and Florida, have laws on the books that make it illegal for a restaurant, bar, or retail store to sell alcoholic beverages to someone who is obviously intoxicated. Additionally, there are civil penalties and a legal cause of action that can be filed against a business if they serve alcohol to an intoxicated patron who proceeds to get in a crash and hurt themselves or someone else. These civil laws are designed to encourage business owners and employees not to over-serve customers and put members of the public at risk.

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With thousands of miles of beautiful coastline and hundreds of lakes and rivers, Florida is a popular destination for water lovers. However, with so many people on Florida beaches and in Florida’s lakes and rivers, there are bound to be accidents. Many of these accidents are the result of inexperienced operators or, worse yet, irresponsible operators who are either not paying attention or are intoxicated.

BoatersBoaters, like the operators of other motorized vehicles, are responsible for their actions. This means that a negligent or intoxicated operator may be held liable for any injuries that were caused by their reckless decisions. In order to prove a case against a negligent operator, an accident victim must prove that the defendant’s negligent actions caused the accident victim’s injuries. This is most often done through a traditional negligence lawsuit.

Negligence lawsuits have four main elements:  duty, breach, causation, and damages. In most cases, the element of duty is easy to establish because boaters all have a duty to others with whom they share the water to operate their vessels in a safe manner. In most cases, the bulk of litigation in boating accident cases takes place regarding the elements of breach and causation.

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Earlier last month, four of the five families who lost loved ones in a truck accident entered into and accepted settlement negotiations with the employer of the truck driver who was determined to be at fault in the accident. According to a local news source covering the tragic accident and subsequent settlement, three of the four settlement amounts are still confidential. However, it was released that one family was provided $14 million for the loss of their loved one.

Semi TrucksSettlement Negotiations in Truck Accident Cases

It is commonly asked why so many personal injury cases end up as settlements. While there are several reasons for this, and many are based on the personal preferences of the specific parties involved, certainty is one of the main motivating factors. Even a seemingly rock-solid case can lose its strength if certain evidence is discovered or if an unfavorable pre-trial ruling is made. In these cases, it may behoove a plaintiff to accept a guaranteed sum of money rather than take the case to trial and potentially end up with nothing.

The Facts of the Case

Evidently, back in April of last year, five nursing students were traveling to work on Interstate 16. The students were split up into two cars, and they had come to a stop in a traffic jam that was caused by an unrelated accident. While the two vehicles were in stop-and-go traffic, a truck came up from behind traveling at a high rate of speed. The truck slammed into the rear of one of the vehicles carrying several students. That vehicle then crashed into the other vehicle carrying the remaining students.

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Earlier this month, an appellate court in Maine dismissed a premises liability case against a city government because the plaintiff failed to notify the government being sued within 180 days of his injury. In the case, Deschenes v. City of Sanford, the court determined that the plaintiff’s verbal notification that he was going to file the lawsuit was not sufficient to meet the requirements of the state’s Tort Claims Act.

stairs-1215277The Plaintiff Fell Outside City Hall

The plaintiff was visiting city hall to obtain a copy of his daughter’s birth certificate when he tripped on some raised tread and fell down the stairs. After falling down the stairs, he slid into a set of glass doors and was injured as a result. City employees at the scene provided the man with some basic medical care until the ambulance arrived and could take him to the hospital. Upon arrival, it was discovered that he had not suffered serious or life-threatening injuries, although he did have a few “abrasions.”

The plaintiff did nothing for the first 177 days following the accident. However, on the 178th day, he again went to city hall, this time to inform the government that he would be filing a lawsuit against them for failing to maintain safe premises. However, when he arrived, all the doors were closed. He was able to speak with one employee, and he informed that employee that he would be filing a personal injury lawsuit. A few weeks later, the city received formal notice that the plaintiff had filed a lawsuit.

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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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