Articles Posted in wrongful death

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Historically, the doctrine of sovereign immunity prevented litigants from asserting claims against governmental entities. Over time, however, this concept of complete immunity for the government has given way to a more limited form of sovereign immunity, under which those previously protected by the doctrine are subjected to tort liability. However, certain limitations and restrictions still apply.

It is not always clear whether and to what extent a particular entity is entitled to immunity. In such cases, it is up to the courts to make the appropriate determination.

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Could it be that a false sense of security is worse than no security at all? Two siblings who moved into a “gated community” surrounded by water, walls, and fences in 2004 assumed that they were safe from murderers and thieves. After all, the apartment complex claimed to provide reasonable lighting, locks, and peepholes, and the apartments had alarm systems. Unfortunately, the siblings were far from safe.

According to the personal representative’s appellate brief in the case of Sanders v. ERP Operating Limited Partnership, the siblings were murdered in 2005 while living at the Gatehouse on the Greens apartment complex located in Plantation, Florida. The complex consisted of over 300 apartments located in a dozen buildings. In all, it was home to approximately 1,000 residents.

Proceedings in the Trial Court

The lawsuit filed against the owner of the complex by the siblings’ personal representative alleged that the siblings’ death was caused by the complex’s negligent failure to maintain the premises in a reasonably safe condition. Specifically, the personal representative claimed that the complex did not maintain the front gate, failed to have adequate security, did not prevent dangerous persons from gaining access to the premises, and failed to protect and warn residents of dangerous conditions and criminal acts.

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palm trees2As we discussed in a recent post, an injured person does not usually have the right to sue the insurance company of the person or business that caused the injury. There is a small exception to this rule, however. In situations when an injured person (or, in the case of death, his or her family) has filed a lawsuit against the negligent person or business and obtained a judgment, but the insurance company refuses to pay the injured person the money to which he or she is entitled under the judgment, the injured person may be able to sue the insurer directly.

In the case of Morales v. Zenith Insurance Company, the family of a man who was killed on the job filed suit against the man’s employer.  According to the family’s complaint, the man was killed by a falling palm tree while working for a landscaping firm. The family filed a wrongful death lawsuit in state court in 1999, alleging that the landscaping firm’s negligence had caused the man’s death. A default judgment was entered against the firm. Later, a jury trial was held to assess damages, with the family ultimately being awarded $9.525 million.

The Workers’ Compensation Settlement

Meanwhile, the family accepted workers’ compensation benefits from the landscaping firm’s insurance company, which insured the firm for both workers’ compensation (“Part I”) and employer liability insurance (“Part II”). The employer liability insurance provision contained an exclusion to the effect that there would be no coverage for any obligation under workers’ compensation law. In 2003, the insurance company made a “final lump sum payment” to the family in exchange for a settlement agreement that purported to constitute an election of remedies by the man’s estate with respect to both the employer and the carrier. Including the lump sum, the family received a total of $100,000 in workers’ compensation benefits.

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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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983691_54702040.jpgThe mother of a high school football player who died during pre-season practice last summer announced her intention to file a lawsuit against the school system. She alleges that the school and its athletic department failed to adequately protect its players against heat-related injuries. Changes to the rules governing summer practices may help prevent future incidents in Florida high school football, but heat stroke and other injuries remain a serious problem for athletes around the country.

Isaiah Laurencin played in the offensive line of Miramar High School’s football team. The 16 year-old was 6-feet-3-inches tall, weighed 286 pounds, and had reportedly drawn the attention of college scouts. He collapsed on the field during conditioning drills at about 5:00 p.m. on Tuesday, July 26, 2011. Doctors pronounced him dead at the hospital the following morning. The medical examiner ruled Laurencin’s death “natural,” saying it resulted from sickle cell trait anemia, which caused cardiac arrest due to physical exertion. Sickle cell anemia can cause heightened sensitivity to heat, and therefore higher susceptibility to heat stroke. Laurencin also reportedly suffered from asthma and hypertension.

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1359233_53491326.jpgA bicycle accident resulted in the death of a Coral Springs teenager who had been riding on the bicycle’s handlebars and was hit by a car. Police are reportedly searching for the person operating the bicycle, who fled the scene. No charges have been filed against the driver of the automobile.

The accident occurred just before 10:00 p.m. on Friday, July 6, 2012. A 1989 Lincoln was heading east on Royal Palm Boulevard. At the same time, a bicycle with a 16 year-old passenger riding on the handlebars attempted to cross the street heading north. The bicycle’s operator reportedly stopped abruptly, causing the passenger to stumble into the Lincoln’s path. The Lincoln then struck the teen. The injured teenager was transported to a hospital, where he died from his injuries on July 12. The operator of the bicycle, who remained unidentified as of the most recent reporting on the story, fled the scene on foot, heading east. The driver of the Lincoln was not injured.

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320px-Fort_Lauderdale_Skyline_7.jpgA driver’s attempt to pass another vehicle on the shoulder of Interstate 95 may have caused a three-car accident that left one person dead. The accident closed down the highway for four hours on a Saturday evening as investigators attempted to piece together the chain of events. The accident involved four people. One person was killed in the accident, and another was seriously injured. The other two people reportedly did not suffer injuries.

The accident occurred at approximately 6:30 p.m. on Saturday, July 14, 2012, in the southbound lanes of Interstate 95 in Fort Lauderdale. A man driving a 1999 Isuzu Rodeo reportedly attempted to use the right shoulder of the highway to pass a Ford Mustang. While changing lanes off of the shoulder after passing the Mustang, the Rodeo apparently clipped the Mustang’s front. This caused the Rodeo’s driver to lose control, and his vehicle flipped over. The Mustang veered to the left after the impact, colliding with a 2004 Volvo C70.

A 52 year-old passenger in the Rodeo was thrown from the vehicle when it rolled over. He was reportedly not wearing a seatbelt. Emergency responders pronounced him dead at the scene. The driver of the Rodeo was taken to the hospital with injuries described as “serious.” The drivers of the Mustang and the Volvo were not injured in the collision.

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836346_36652183.jpgAn alleged drunk driver crashed his pickup truck into a legendary Miami soul food restaurant the weekend before the 4th of July, killing two people and destroying the restaurant’s front. The driver now faces DUI manslaughter charges and multiple charges for driving under the influence, including several charges of DUI with property damage.

At about 8:30 p.m. on Saturday, June 30, 2012, several men were standing outside Jumbo’s Restaurant in Miami’s Liberty City neighborhood. Ken Knight, on of Jumbo’s owners, was talking to two regulars of the restaurant, Wilton Harris and Al Jo Hamlin. Harris and Hamlin, both of whom were pastors, had reportedly just come from a memorial for a Jumbo’s waitress who had died of cancer. Suddenly, according to Knight, a white pickup truck veered off of the street, into the parking lot, and directly towards the restaurant. Other witnesses said they saw the truck speed up as it approached Jumbo’s. Knight said he heard a boom and a crash. The pickup truck had hit a car parked in front of the restaurant, pushing it through the restaurant’s glass windows. The collision threw Hamlin through the window into the restaurant. Knight found Harris pinned under a truck. Both men were killed on impact. About eleven people were in the restaurant, but none of them were injured.

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1158220_39704248.jpgA national health care advocacy organization, the Trust for America’s Health (TFAH), recently released a report on injury-related deaths in all fifty states and the District of Columbia, entitled “The Facts Hurt: A State-By-State Injury Prevention Policy Report.” TFAH identified ten “key indicators” of injury prevention in state laws and regulations. The study ranked the states and D.C. based on the number of key indicators present, and it also ranked them based on the rate of deaths per 100,000 people. Florida ranked near the middle on both scales, with only six of the ten key indicators. The state’s annual rate of 66.8 injury-related deaths gives it the eighteenth-highest rate in the country.

Injuries account for over 180,000 deaths each year, according to the study. Among people between the ages of one and forty-four years, injuries are the leading cause of death. Injuries account for nearly 90,000 deaths in that age group, compared to 50,000 for non-communicable disease and less than 10,000 for communicable disease. The study divides injuries into categories, including falls, blunt force injuries, gunshot wounds, cuts or puncture wounds, burns, poisoning, vehicular injuries, and drowning or suffocation. In all, the lifetime costs of injuries, which includes not only immediately medical expenses but also the ongoing cost of care, lost income, and lost productivity, exceed $406 billion per year.

New Mexico has the highest overall injury-related death rate, according to TFAH, with 97.8 deaths per 100,000. New Jersey has the lowest rate at 36.1. Florida is just behind Colorado’s 67.8 and ahead of North Carolina’s 66. TFAH states in its report that it cannot say with certainty why one state has a lower or higher injury-related death rate than another state, but that its list of “key indicators” can offer states guidance on how to effectively prevent injuries.

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It was chilling to watch this tribute to the cyclist Aaron Cohen that was stuck and killed by a hit and run driver on Virginia Key recently. From all reports and interviews that was seen Aaron was an all round great guy – a great father to his kid and a great son to his parents and a best friend to all.

VIRGINIA KEY, Fla. (WSVN)Family and friends of a cyclist who lost his life after being struck by a hit-and-run driver gathered in his honor.

Thursday night, hundreds jogged up the bridge where 36-year-old Aaron Cohen was struck. Once the massive group of Cohen’s loved ones got to the top of the bridge, they dropped roses into the waters below.

According to police, Cohen and his friend, Enda Walsh, were biking across the Rickenbacker Causeway to Key Biscayne early Wednesday morning, when a vehicle hit them.

Police said the driver then fled the scene; Walsh suffered a broken ankle, and Cohen has a serious head injury.

The 36-year-old father of two was sent to the hospital in critical condition. However, Cohen succumbed to his injuries on Thursday afternoon.

His family was devastated. “We were a family all the time. His cousins, his aunts, his uncles, everybody loved him. Everybody loves him. He is just special,” said Cohen’s father, Stephen. “Aaron Cohen is probably the nicest person who has ever lived. He had no enemies, he never had a bad word to say about anybody, he was a fierce competitor, he was bright … He was the kind of son every father dreams about.”

Earlier Thursday, the hit-and-run driver, 26-year-old Michele Traverso, turned himself into police. He appeared in court, where he was charged with leaving the scene of an accident with serious bodily injury and driving with a suspended license.

Traverso has had a history with drugs: he was almost done completing a drug program that stemmed from a cocaine charge, and the charge against him would have been dropped had he finished the program.

However, Traverso’s new charges are a direct violation of the probationary program, and as a result, he will be held without bond for at least 24 hours. Also, Traverso’s charges will likely be upgraded because of Cohen’s death.

During Thursday night’s memorial, the words Aaron wrote just before he died were read, which he titled, Why I Run: “The short answer is, I run, because it makes me happy.”

The story above says it all, Aaron and his companion victims of a hit and run driver, luckily the driver turned himself in eventually and charges were made. Victims of hit and run accidents after seeking medical attention should seek immediate legal counsel from an experienced attorney to ensure you know your legal rights. Keep records of all medical bills, go back to the scene of the accident and take photographs of the area, also keep photographs of your injuries.

Should you or a loved find yourself a victim of this type ofinjury please contact an Attorney experienced in wrongful death law to ensure that you know your loved one’s rights. Contact us for your FREE consultation via telephone 954 431 8100 or 305 624 9186 or online.

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