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In a recent opinion, a state appellate court determined that the defendant city may be held liable for the wrongful death of a man who was killed after being attacked by several privately owned dogs. The case required the court to discuss the public duty doctrine and apply it to the facts presented. Ultimately, the court determined that the city was not entitled to immunity because a special relationship arose between the plaintiff and the city, giving rise to an obligation to the plaintiff and her husband.

Dog at SunsetThe Facts of the Case

The plaintiff was concerned about several neighborhood dogs that she perceived as dangerous. She called 911 on at least one occasion, and she was transferred to the city’s dog warden. The plaintiff expressed her concerns, and the dog warden told the plaintiff that “the county would take care of it.”

On another occasion, the dog warden went to the dogs’ owner’s home and was approached by one of the dogs as she pulled into the driveway. The dog jumped onto the car, preventing the dog warden from getting out of the vehicle. The dog warden later issued the owner a citation for failing to keep the dog restrained.

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When a plaintiff files a premises liability lawsuit in Florida, the case will go through several stages before it goes to trial. One of the more important stages in most premises liability lawsuits is the summary judgment phase. Summary judgment is a motion that a party can file, asking the court to rule in its favor because they are entitled to judgment as a matter of law.

Wet FloorIn order for a summary judgment motion to be appropriate, the moving party must establish that the opposing party cannot succeed, even if all credibility conflicts are resolved in the opposing party’s favor. In Florida, summary judgment is appropriate when there is “no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.”

Thus, during a defendant’s summary judgment motion, the judge must assume that all plaintiff witnesses are credible. If, after assessing the evidence, there is no way that the non-moving party can be successful, summary judgment is appropriate, and the case will be dismissed. However, if an issue of fact is present, summary judgment is not appropriate. A recent case illustrates this process.

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Earlier this month, the District Court of Appeal of Florida’s Second District issued a written opinion analyzing and applying one of the state’s more interesting rules of evidence. The case required the court to discuss Florida Statute 90.407, which deals with the introduction of evidence that a defendant took subsequent remedial measures to remedy a hazard alleged to have caused or contributed to the plaintiff’s injuries.

Cracks in PavementWhat Is a Subsequent Remedial Measure?

Assume that an infant’s toy contains a piece that may be a choking hazard, and once the product is released to market, several infants choke on the toy, and their parents file lawsuits against the toy’s manufacturer. After the manufacturer hears of the potential hazard and the pending lawsuits, the manufacturer redesigns the toy, eliminating the piece that created the choking hazard. Should the parents involved in the pending lawsuit be able to present evidence of the manufacturer’s redesign to show that the manufacturer knew the original design was dangerous?

Florida Statute 90.407 governs these situations. The act of redesigning the toy was a subsequent remedial action taken by the toy manufacturer. As a general rule, evidence of subsequent remedial actions is not permitted to show that the party taking the action was negligent. This is to encourage parties to fix potential hazards without fear of conceding liability. However, there are exceptions when evidence of subsequent remedial actions may be admissible at trial. A recent case illustrates one such example.

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Recently, a Florida court of appeals issued an interesting opinion in a slip-and-fall case that has relevance for any personal injury plaintiff because it discusses how lower courts should handle plaintiffs’ expert testimony at summary judgment proceedings. The appellate court ultimately held that it is improper for a trial court to make a credibility determination when hearing a motion for summary judgment. Instead, the court should consider all of the presented evidence and only grant a defense motion for summary judgment if there is no issue of material fact.

Wet FloorFlorida’s Summary Judgment Standard

In Florida, before a case is sent to trial before a jury, either party can move for summary judgment. Summary judgment is an opportunity for a party to have a judge enter a verdict in their favor based on the pleadings alone. In a defense motion for summary judgment, a judge will consider the plaintiff’s allegations as true and then determine if the plaintiff would be entitled to relief. If so, the defense motion for summary judgment is denied. However, if, even after considering all of the evidence in the light most favorable to the plaintiff, the plaintiff’s claim is insufficient, the motion will be granted.

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Earlier this month, an appellate court in Virginia issued a written opinion in a case involving a pedestrian who was struck and killed by a passing train. The case presented the court with the opportunity to discuss the “last clear chance doctrine” as it applies in that jurisdiction. Ultimately, the court held that the plaintiff’s complaint alleged facts that, if true, would allow the jury to determine that the defendant railroad operator had the opportunity to avoid the collision but failed to do so. As a result, the court permitted the plaintiff’s case to proceed toward trial.

Railroad TracksWhile the determination of whether a party is able to avoid an accident is relevant in Florida personal injury cases, the last clear chance doctrine is not something that would come up under Florida law. This is because Florida applies a far less restrictive doctrine when determining which plaintiffs are entitled to recover damages.

Comparative Fault Versus Contributory Negligence

The jurisdiction where this case arose, Virginia, is a contributory negligence state. Under the doctrine of contributory negligence, an accident victim who is at all at fault for the accident resulting in their injuries is not entitled to recover from any other defendants that may have also contributed to the accident. This very strict rule prohibits plaintiffs from recovering in a significant amount of personal injury cases. The last clear chance doctrine acts as a sort of exception to the application of the contributory negligence rule, and it allows negligent accident victims to recover in some circumstances in which the defendant could have avoided the accident.

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Earlier this month, an appellate court in Florida issued a written opinion in a nursing home negligence case brought by the estate of a woman who died while in the care of the defendant nursing home. The main issue presented for the court was whether the arbitration agreement signed by the resident’s daughter could bind the resident’s estate to arbitrate any claims it had against the nursing home. Ultimately, the court determined that the arbitration agreement was not binding against the estate, and it allowed the case to proceed through the court system.

Signing a ContractThe Facts of the Case

The plaintiff in the case was the executor of the estate of a woman who had died while in the care of the defendant nursing home. When the resident was admitted to the facility, she was not competent to make her own medical decisions, so her daughter was there to assist her. Once the daughter identified the nursing home facility that she thought would be best for her mother, she signed a “Voluntary Arbitration Agreement and Acknowledgement,” stating that any claims that arose from the facility’s care of the resident would be settled through arbitration rather than through the court system.

At the time the daughter signed the form, the daughter did not have power of attorney for her mother. In fact, it was undisputed that she was merely acting as a health care proxy for her mother. However, the daughter signed the agreement, indicating she was her mother’s legal representative, but she listed her relationship as “proxy” later in the form.

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Earlier this month, a Florida appellate court issued a written opinion in a personal injury case that involved a discussion of the required elements of a Florida premises liability lawsuit. In the case, which involved a woman’s slip-and-fall accident that occurred in a bank parking lot, the court ultimately found in favor of the plaintiff. Specifically, the court held that even though the hazard allegedly causing the plaintiff’s fall was obvious, summary judgment in favor of the defendant was improper.

Pin PadThe Facts of the Case

The plaintiff was a customer of the defendant bank. When the plaintiff went to make a deposit through the drive-up window and noticed that the bank was closed, she decided to make her deposit through the Automated Teller Machine (ATM). As the plaintiff approached the ATM, she noticed that the area around the ATM was under construction with a barricade a few feet in front of the ATM.

According to the plaintiff, there was a sign on the barricade with an arrow, instructing patrons to walk around the barricade to reach the ATM. The plaintiff attempted to negotiate her way around the barricade, but stepped in a “pot hole”, causing her to fall. She sustained injuries to her foot, leg, neck, and back.

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Earlier this year, an appellate court in Georgia issued an opinion in a car accident case that required the court to discuss and apply the negligent entrustment doctrine. Ultimately, the court determined that the plaintiff presented sufficient evidence of the employer’s knowledge of the at-fault employee’s checkered driving history to survive summary judgment.

Handing Over KeysThe Facts of the Case

The plaintiff was injured in an accident caused by a drunk driver. The drunk driver was operating a truck that he had borrowed from his employer. The plaintiff filed a personal injury lawsuit against not just the drunk driver but also the employer. The plaintiff claimed that the employer was negligent in allowing the employee to use the truck.

The plaintiff presented evidence that during the driver’s employment interview, he disclosed the fact that he had several prior convictions for driving under the influence of drugs or alcohol. Evidently, the employer pulled a criminal background check for the employee, which came back clean, but that check only looked back three years. The employer never pulled a driving history for the employee.

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In a recent case, a court decided that a gas station could be held liable after a driver who was delivering gas was injured on the gas station’s property. A tanker driver who had just delivered a load of gasoline to the station was hit by another car and later brought a lawsuit against the other driver, the gas station, and the gas station’s manager.

Gas PumpThe driver had parked his truck at the station in the area for delivering gasoline. He also placed three traffic cones by the truck. He then went into the store to fill out some information about the delivery, made the gas delivery, and went to another part of the station to measure the station’s tank levels as required by the station owner. He took one of the cones with him and placed it in the area where he was measuring the tanks. While he was measuring the levels, he dropped a tank cap into the well and got onto his hands and knees to pick up the cap. As he was doing this, another car backed into him.

A trial court originally found the gas station and its manager were not liable and granted summary judgment in their favor. The court said the driver’s knowledge of the danger was greater than or equal to the gas station’s knowledge of the danger. The driver appealed.

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Police officers, like most government employees, are entitled to immunity from certain personal injury lawsuits under the doctrine of government immunity. This may even be the case when a police officer’s actions result in a serious injury or death. Government immunity does not apply in all situations, but in most cases, it will apply by default unless the injured party is able to show that the government employee’s conduct was reckless, intentional, or otherwise not qualified for immunity. A recent case illustrates how a court may apply government immunity to a police officer’s actions, defeating a personal injury plaintiff’s case.

Police CarAgrabrite v. Neer:  The Facts

Agrabrite was involved in a car accident when she was struck head-on by another motorist who was fleeing from the police at the time of the accident. The other motorist died in the collision, and Agrabrite was seriously injured. Agrabrite filed a personal injury lawsuit against several of the police officers involved in the chase, claiming that they were responsible for her injuries.

Before the case was submitted to a jury, the police officers sought summary judgment. They claimed that, as government employees, they were entitled to immunity from the lawsuit. In response, Agrabrite argued that the “wanton and reckless” conduct exhibited by the officers prevented immunity from attaching to the officers’ conduct.

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