Articles Posted in Wrongful Death

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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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doctors clothes 2The idea of “separation of powers” is a basic component of the American legal system. The legislative branch passes laws, the executive branch enforces those laws, and, when necessary, the judicial branch interprets the laws.

In the recent case of North Broward Hospital District v. Kalitan, the District Court of Appeal for the Fourth District of Florida was asked to determine whether a previous ruling of the Florida Supreme Court concerning the constitutionality of a cap on damages was applicable to a particular medical malpractice suit.

The previous case, Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), held that Florida Statutes § 766.118, which purported to limit noneconomic damages awards in wrongful death cases arising from an act of medical negligence, was unconstitutional under the Florida Constitution.

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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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