Articles Posted in premises liability

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802348_69751285.jpgA dispute over insurance coverage has developed between a Florida homeowners’ association (HOA) and its insurer after the mother of slain 17 year-old Trayvon Martin claimed compensation for the death of her son. Martin was shot and killed by a resident in the neighborhood represented by the HOA. The insurance company filed a declaratory action in an Orlando federal court asking the court to declare that it is not responsible for covering the HOA on the mother’s claim.

The Trayvon Martin case has become well-known and highly controversial. Martin was visiting his father, who lived in a gated community in Sanford. The teenager was allegedly walking home from the store on the night of February 26, 2012, when he was shot and killed by 28 year-old George Zimmerman, a neighborhood watch volunteer who claimed that he acted in self-defense. Martin’s family says that Zimmerman singled their son out because he was African-American, followed him through the neighborhood, and incited an altercation. Police arrested Zimmerman forty-four days after Martin’s death and charged him with second-degree murder. Zimmerman has entered a plea of not guilty and is out of jail with a $1 million bond.

Martin’s mother, Sybrina Fulton, filed a claim with Travelers Insurance, which covers the Retreat at Twin Lakes HOA. She requested in excess of $75,000 in damages for Martin’s death. She also filed a claim with the Florida Bureau of Victim Compensation, and was approved in March for a payment from the Crimes Compensation Trust Fund. Her claim to Travelers drew a quick response.

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Last year, I wrote about the very sad drowning death of a two-year-old boy who wandered into an apparently unsafe backyard near his home. Isaac Dieudonne, 2, walked out the front door of his new home and into the pool area of the next-door neighbor’s home, which was vacant. At least two gates leading to the pool were reportedly open, despite laws requiring self-latching gates intended to prevent this type of accident. At the time, the case attracted my attention because of speculation that the home was vacant due to foreclosure. On Oct. 29 of this year, that speculation was confirmed by a McClatchy article about the Dieudonne family’s struggle to hold someone responsible for Isaac’s death. Because the home is in foreclosure, it isn’t clear whether the mortgage holder, mortgage servicer or maintenance company should be responsible.

According to the article, the Dieudonnes’ Miramar premises liability attorney wasn’t even sure who owned the property at first. The title had changed hands several times; some documents were fraudulent or had serious errors; and was at one point being foreclosed on in two cases at the same time. As a result, the family has named 20 defendants in the case, including owners, servicers, maintenance companies and a company that was holding the title for an owner. Some of the defendants claim they didn’t own the property at the time of Isaac’s death. All of this has already complicated the case, with an unnecessary move to federal court, and with 20 corporate defendants, more delays are likely. The Dieudonnes claim that neither the side gate to the home’s backyard nor the gate into the pool were fitted with self-closing spring locks, as required by Miramar city code — and that they’re still unsafe today.

Unfortunately, drowning in swimming pools is a well known risk for toddlers and young children, which is exactly why cities have laws about self-latching gates. Under normal circumstances, a property owner’s failure to follow those laws can expose him or her to a premises liability lawsuit like the one the Dieudonnes are pursuing. Florida law gives everyone who owns or operates a property a legal obligation to ensure that the property is safe. This includes protections against foreseeable dangers, including the danger that a small child could get into a swimming pool without supervision. In my experience as a Lauderhill premises liability lawyer, handling this in a private home is usually a matter of handling the homeowners’ insurance company. But when it’s not even clear who owns the property, the entire process gets dragged out — and the family’s suffering unfortunately gets dragged out along with it.

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As a Lake Worth premises liability attorney, I’ve written here before about the suspected “cancer cluster” at the Palm Beach County community of The Acreage. After an abnormally large number of children in the community were diagnosed with brain cancer, the community began pushing for tests to confirm suspicions that radiation may have contaminated the area’s groundwater. A previous test from the state found radiation in 10% of randomly selected wells in the community, and a New York City toxic tort law firm has also conducted tests finding radiation in homes. According to a Jan. 10 Sun-Sentinel article, the Palm Beach County Department of Health also plans tests to look for radon in homes where children lived when they were diagnosed with cancer.

The Health Department has been investigating the suspected cancer cluster since the summer of 2009 and has not yet concluded that rates of cancer there are unusually high. However, the tests for radon are cheap and easy to conduct, a spokesman said. The county plans to end its interviews with families in the next few weeks, at which time it will start the testing. The results will be presented at a community meeting about the problem in February. Radon gas is a by-product created when the radioactive chemical element radium decays. It is colorless, odorless and tasteless, making it difficult for humans to detect — but it’s also a known carcinogen. Some Acreage residents believe the radiation could be the result of toxic spills from a nearby plant for rocket developer Pratt & Whitney, which later became a Superfund site.

As a toxic contamination site lawyer in Plantation, I will be very interested in the results of this study. Human beings knew radon caused sickness among miners as early as the sixteenth century, and federal agencies suggest immediate action when radon levels in a home or workplace exceed guidelines. If testing can identify radon as the source of the problem, homeowners can take that action as soon as possible to protect themselves and their families. Testing may also help investigators determine the source of the contamination, an extremely important issue for residents who are considering legal action. If radioactive contamination from the Pratt & Whitney plant is the problem, that company, real estate developers for The Acreage and government agencies may all be held legally liable for failing to warn residents about the risk of radioactive exposure.

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As an Aventura injuries to minors attorney, I have written several times about the dangers to young children from unattended swimming pools. I am sorry to say that the city of Delray Beach saw another such accident Dec. 29. According to the South Florida Sun-Sentinel, a three-year-old boy and a boy and a girl, both two, somehow got into a neighbor’s backyard around 5:30 p.m. as they were visiting a family friend. One of the boys was hospitalized in critical condition Tuesday, while the other children were in stable condition. Delray Beach police are investigating how the accident occurred.

The boys are brothers and the girl is their cousin, according to family friend Manette Joseph. Both of their mothers were visiting Joseph’s home while Joseph was working that day. It was unclear whether an adult was watching them when they were outside, but a neighbor, Matilda Corona, had warned the children and a teenager to stay away from her own pool earlier in the day. When the children were found in another neighbor’s pool, Corona’s daughter-in-law, a nursing student, was called to perform CPR. Because the pool was murky and dirty, a Fire-Rescue dive team was called to ensure that there were no more children in it.

The nursing student told the Sun-Sentinel that she didn’t see a screen around the pool. If so, it suggests that the unnamed neighbor may have violated Florida law by failing to erect a fence sufficient to keep small children out. Swimming pools are a leading cause of accidental drowning in toddlers, taking the lives of about 300 children under five each year. For that reason, state law requires owners of new swimming pools to erect a fence around their pools high and secure enough to keep young children out. Failure to follow this law can result in a criminal charge, as well as clear liability in any West Palm Beach child injury lawsuit. This is entirely separate from the issue of whether the children were adequately supervised by adult family members. If they were not, both parties would be at fault and any financial recovery for the family would be reduced accordingly.

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As a Pompano Beach premises liability attorney, I was very interested in a recent report about an outbreak caused by contaminated water at an upscale Miami hotel. The Miami Herald reported Dec. 13 that bacteria in the water at the Epic Hotel is believed responsible for one death among the guests and two other cases of illness. All three victims contracted a rare form of pneumonia called Legionellosis, or Legionnaires’ disease, which is generally transmitted by breathing water vapors infected with the Legionella family of bacteria. Authorities say that the three victims represent only a fraction of all of the guests the hotel had seen over the past two months, but about 300 guests still asked to be moved to other hotels.

The problem was uncovered by a joint investigation between Florida state health officials and the Miami-Dade County Health Department. The investigators put the blame on the hotel’s powerful new water filter — which, ironically, was intended to improve the quality of the drinking water. The filter was so powerful that it removed the chlorine from ordinary Miami city tap water, allowing bacteria to grow. The result was three known cases of Legionnaires’ disease in the past two months, affecting unrelated European tourists. The first victim, a man, visited the hotel on the way to a cruise ship, where he became ill. He was rushed back to the mainland for treatment, but died. The other two victims were a man sickened in late November and a woman who fell ill this month. The article did not mention whether they have recovered. Poor international communication prevented authorities from discovering the connections earlier, county officials said.

The article says that the hotel is working with the county to fix the problem, by bypassing the water filter and temporarily tripling the chlorine in the hotel’s supply. But as a Hallandale Beach dangerous premises lawyer, I wonder whether careful investigation beforehand would have revealed that the water filter was removing necessary safeguards from the hotel’s water supply. According to the Centers for Disease Control and Prevention, Legionella bacteria are common in the environment and especially likely to be passed on at hotels. Like many bacteria, they thrive in the warmer temperatures common in South Florida. Chlorinated drinking water may taste bad, but it’s also specifically intended to inhibit growth of microbes in the public water supply. All of these facts suggest that the hotel should have at least considered the chance of contamination before filtering out the chlorine.

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As a Miramar premises liability attorney, I was interested to see a report about a major incident at Walt Disney World that left about 300 people stuck in cars high above the ground. The Orlando Sentinel reported Dec. 14 that a hard drive failed in the computer system that runs the monorails at around 1 a.m. early on Sunday, Dec. 13. The computer problem cut off power to seven monorail cars, three of which were out of the station with people inside. No injuries were reported, but the Reedy Creek Fire Department used ladders to rescue guests from the high monorail tracks, which a Disney spokesperson said was motivated by customer service concerns. The trains began running again around 4 a.m. and were operational when the park opened Sunday.

It was the third incident involving monorail service at the Magic Kingdom this year. In July, a Disney employee was killed when two of the trains crashed. In the fall, an electrical short shut down parts of the system in an incident that affected 25 people but did not result in any injuries. While nobody was hurt in this latest incident, several park visitors wrote in to television station Central Florida News 13 complaining about the way Disney handled the incident. Because the power was out, there was no air conditioning, they wrote, leaving it hot and muggy inside. One passenger said her driver said not to open the emergency windows in case the glass fell out and onto people below. She also complained that the driver misled her car, saying at first that they were waiting for clearance, and then that they were experiencing minor technical difficulties. Another Disney visitor wrote in to say that his train had a power outage earlier in the day, which stranded him for about 45 minutes.

I am pleased that nobody was seriously hurt, even though the experience sounds hot and stressful and probably kept a lot of kids up past their bedtimes. As a Hollywood premises liability lawyer, I can think of a few ways in which someone could have been injured by the experience. Simply being stuck in a small, hot, humid place for three hours could cause problems for people with certain health conditions, such as people with heart problems or time-sensitive medications. Incorrect instructions, or failure to control an angry crowd, could also lead to injuries from people climbing out of the car or getting involved in fights. Just as Disney has a responsibility to make sure its rides and grounds are safe, it also has a responsibility to prevent incidents that it can reasonably anticipate, which may include problems with out-of-control guests. Failure to do that could lead to a tragedy and expose Disney to a premises liability lawsuit.

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Last month, I wrote on this blog about a Palm Beach County sheriff’s deputy who suffered burns over about 60% of his body after the gas pump he was using simply exploded. Sgt. Richard Ragali was badly burned Oct. 2 during a motorcycle ride to the Florida Keys with a group of friends. When they pulled into a gas station in Marathon, Ragali’s Harley slipped in a puddle of gas, triggering an explosion and pinning him underneath the bike. Ragali has been hospitalized at Jackson Memorial Hospital ever since. According to a Nov. 14 article from KeysNet.com, he and his family are suing the gas station and its parent companies for failing to take care of the gas spill and prevent the accident.

Ragali’s lawsuit, filed last week in Palm Beach County Circuit Court, names Circle K, Shell Oil, Circle K store number 2386 and Motica Enterprises LLC as defendants. According to television station WPBF, the suit alleges that the store’s owners had been warned several times over the preceding weeks that there was a gas puddle at the pump. Nonetheless, they negligently failed to take action, the complaint charges. Ragali is seeking damages for his medical bills, lost past and future earnings, injuries, pain, suffering, permanent disfigurement and loss of enjoyment of life. His sons, 16-year-old Joshua and 20-year-old Joseph, are claiming the loss of their father’s services, support, guidance and other care. Their family’s West Palm Beach premises liability attorney said they’ve been living with their mother, who is divorced from Ragali, since the accident.

I was also sobered to read about some of the serious consequences of Ragali’s burn injuries. KeysNet reported that he is in a specialized burn unit, where he has received multiple skin grafts and is undergoing physical therapy. The family’s attorney said Ragali recently took 20 steps — a big deal for his family. As a Lauderhill burn injury attorney, I’m sorry to say that this is not unusual for someone who was so severely burned. In addition to being unpleasant to look at, the inflexible scar tissue from a bad burn can also restrict the victim’s movements if not prevented, corrected or both. Victims typically need long-term physical therapy, care from a burn specialist or dermatologist and sometimes surgeries. Not surprisingly, all this medical care can be very expensive. For someone as badly burned as Ragali, medical costs can easily reach seven figures over a lifetime.

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A series of cancer deaths among pets has bolstered suspicions that environmental contamination in The Acreage may be causing a human “cancer cluster” as well. According to an Oct. 18 article in the Palm Beach Post, the rate and types of cancer diagnosed in some pets in the community make some residents suspect their pets’ use of well water to drink and bathe may have caused their tumors. The theory follows suspicions among residents of The Acreage that radioactivity in the well water the community uses has created its higher-than-average rate of cancer in human residents, attracting the attention of environmentalists and West Palm Beach premises liability attorneys.

According to the article, the Ceraulo family of The Acreage has seen its two German shepherds die of a type of cancer called hemangiosarcoma in the past four years. The disease is common among German shepherds, but not among cats, which is why the family was surprised when their cat, Sylvester, was also diagnosed in September of this year. Other residents of The Acreage report tumors and cancer-like diseases in their pets, but still others say they’ve had pets for years on the land without trouble. A veterinary oncologist told the newspaper that pets may be bellwethers for conditions that affect humans because they have shorter lives and are closer to the ground.

Because nobody keeps records on cancer in pets, it’s not clear whether there’s an unusually high incidence of cancer at The Acreage. But if there were, it would add fuel to a controversy ignited by an unusually high rate of cancer among human beings in The Acreage. An investigation by the state found that 10% of the water in randomly selected wells had levels of radiation that exceeded state standards, and a private study confirmed those results. Some residents believe the radiation is an aftereffect from the neighboring plant for jet and rocket developer Pratt & Whitney, a defense contractor with a history of toxic spills that nearly made it a Superfund site. A recent town hall meeting on the subject in West Palm Beach attracted Erin Brockovich, a consultant and environmental activist who became famous after a movie about her work on a similar “toxic tort” case in California.

As a Boca Raton premises liability lawyer, I’m glad this issue is getting the attention it deserves. Cancer is a devastating disease. If toxic exposure turns out to be the cause of the cancers in this community, residents deserve to know about it as soon as possible. Under the law, the source of pollution or other toxic exposure is responsible for any harm to human beings that results. (It would also be responsible for harm to their property — which, under the law, includes pets.) It’s too soon to say, but in this case, that source could well be Pratt & Whitney. If so, the company would be legally liable for all of the injuries the radiation caused, including the cancers themselves as well as related costs like medical treatment and the cost of moving to a community without the contamination.

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A little boy died by drowning in a swimming pool at a vacant home, the South Florida Sun-Sentinel reported Oct. 12. Isaac Dieudonne, 2, apparently wandered into the back yard of the home next door to his family’s late on Oct. 11. A relative called the police at 7:40 p.m. to report the boy missing, but soon after, he was found in the pool. A door in the fence of the home’s back yard was open, as was a door in a screen surrounding the pool. Paramedics took Isaac to the Joe DiMaggio Children’s Hospital, but he was pronounced dead at around 8:30 p.m. the same night. Law enforcement is investigating whether anyone should be criminally charged in the case.

As a Fort Lauderdale premises liability lawyer, I can’t help wondering who was responsible for the upkeep of this vacant home. If the home had been foreclosed, as so many in South Florida unfortunately have been, it is most likely a bank-owned property. That would mean the bank itself was responsible for the home’s upkeep — and therefore, for creating the conditions that led to the little boy’s death. That would be true even if vandals had opened the gates, as long as the bank or its agent had a reasonable amount of time to fix the problem. In that sense, Isaac Dieudonne may be an indirect victim of the recession. Of course, none of this addresses the issue of whether the adults watching him may also have been negligent, but this would not remove liability for the property’s owner; it may simply reduce the damages in any lawsuit.

Under Florida premises liability law, owners and operators of properties have a legal responsibility to maintain them safely for visitors. That duty includes a duty to take reasonable steps to prevent foreseeable hazards, including hazards that might cause an accident, like puddles of oil, as well as foreseeable violent crimes. Because these cases are frequently called “slip and fall” cases, they may seem like minor matters — but as you can see from this article, premises liability cases can and do involve wrongful deaths and catastrophic injuries. Most commonly, our Miami Gardens premises liability attorneys handle cases involving injuries in public places, such as stores and restaurants. However, government agencies and owners of private homes are also liable, as long as the injured person was not trespassing.

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Our Tamarac premises liability attorneys were interested to see in the South Florida Sun-Sentinel Sept. 27 that the Catholic Church is a defendant in a new lawsuit over toxic mold. A group of residents from St. Andrews Towers in Coral Springs, owned by the Archdiocese of Miami, are suing the archdiocese, the organization that runs the towers and Catholic Health Services for allegedly covering up the mold problem at the five-story seniors’ complex. Residents say the mold makes the air inside the apartments unhealthy, and that the archdiocese knew about the problem but concealed it from residents, even painting over some mold to hide it.

The attorney in the case had sued St. Andrews over the same problem in 2002, a suit that ended in a confidential settlement. Now he alleges that the complex did not take serious steps to fix the mold problem, instead recruiting people to live in the apartments despite the compromised air quality. Spokespeople for the defendants strongly dispute that claim, saying there’s no evidence for any mold problems and that the plaintiffs have never tested for mold. However, the plaintiffs’ attorney said he had personally seen the mold in at least 20 apartments at the complex. Resident Rose Barros said she had complained about mold a few months ago and workers had torn out the offending wall, only to have the same problem on the new wall.

As a Miramar premises liability lawyer, I know mold could be an especially serious problem for senior citizens. Any mold on the walls and ceilings of a home may be ugly, but there are serious health problems associated with certain mold and fungi, particularly a variety called black mold. Mold spores can trigger respiratory problems and allergies in healthy people, but in sensitive people, it can trigger serious respiratory distress, asthma attacks, constant low-grade cold and flu symptoms and more. Among those most likely to be affected are the elderly, who spend more time indoors and tend to have existing health problems. If it’s true that St. Andrews knew about a mold problem and concealed it from residents, it may be judged legally responsible for all of the health problems caused by its inaction and deceit — which could be far more expensive than simply fixing the problem.

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