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Property owners and occupiers owe two duties to invitees upon the property:  a duty to maintain the property in a reasonably safe condition and a duty to warn of latent hazardous conditions that are or should be known to the owner or occupier but are not known by the invitee and could not be discovered through the invitee’s use of due care. The owner or occupier may not have a duty to warn of an open and obvious hazard, but Florida courts have held that the open and obvious nature of a hazard does not discharge the duty to maintain the property in a reasonably safe condition.  The plaintiff must prove the owner or occupier had either actual or constructive notice of the hazard.  Constructive notice may be shown by evidence that the hazard had been present for a long enough period of time that the owner or occupier would have known of its presence through the exercise of due care.

Parking lotThe Third District recently considered whether summary judgment was properly granted to the defendants when the plaintiff tripped and fell on a piece of re-bar in Grimes v. Family Dollar Stores of Florida, Inc. The plaintiff tripped and fell in the parking lot of a mall.  The rows in the parking lot were separated by landscaped areas that had trees with re-bar tie-downs.  The owner and lessee of the property hired a company to maintain these areas.

The plaintiff walked through a landscaped area to go to one of the stores.  The plaintiff tripped on a re-bar that was not tied to any of the trees or shrubs, injuring her knee.  She filed a negligence lawsuit against the store, the landowner, and the lessee, alleging failure to warn, failure to maintain the premises, and failure to correct a dangerous condition.  The plaintiff alleged that the defendants allowed the re-bar to protrude as a concealed dangerous condition in a path used by invitees to the store.

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All accident victims have a limited time to file their claims.  In Florida, the statute of limitations for medical malpractice is two years from the date of the incident giving rise to the claim or two years from the date the incident was discovered or should have been discovered, but not more than four years from the date of the incident.  Section 95.11(4)(b), Florida Statutes.

file000183094558The date of discovery is often at issue in medical malpractice claims.  It can be difficult to pinpoint the exact date on which the plaintiff knew or should have known that there was a reasonable possibility that medical malpractice caused the injury.

The Second District recently considered the application of the medical malpractice statute of limitations in Bove v. Naples HMA, LLC.  The plaintiff in this case was the wife and personal representative of a man who died from a retroperitoneal bleed after he had a bone marrow biopsy.  The plaintiff’s husband died on February 26, 2012.  A doctor who did not perform the biopsy determined that the bleed was a co-morbid condition that acted with other medical issues.

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Spilled items on the floor of a supermarket can create a risk of falls.  Florida has a law that specifically addresses a business’ liability in situations when a person is injured as the result of such a “transitory foreign substance.” § 768.0755, Florida Statutes.  The injured person must prove the business had either actual or constructive knowledge of the hazard and that it should have done something to correct it.  The injured person may show constructive knowledge by showing that the substance had been there long enough that the business should have known of it by exercising ordinary care or that the condition occurred with such regularity as to create foreseeability.

file9551246814621Since it can be difficult to prove actual knowledge, the length of time a substance was on the floor before the fall is often the critical issue in a slip and fall case, as in Dominguez v. Publix Super Markets, Inc. The defendant’s video surveillance captured the events that led to this case.  The video showed that the plaintiff slipped and fell on laundry detergent that spilled from a fallen bottle in the supermarket aisle.  When the bottle fell, an assistant manager was at the opposite end of the 72-foot aisle.  When he heard the crash, he ran to the place where the detergent had spilled.  The video showed him standing over the spilled detergent and bending to pick up the bottle nine seconds after it fell.  The plaintiff slipped on the detergent four seconds later.  Thus, 13 seconds elapsed from the time the assistant manager heard the crash until the plaintiff slipped.

As a customer in the store, the plaintiff was a “business invitee.”  A property owner owes a business invitee a duty to warn of concealed dangers that the owner knows or should have known, but that the invitee could not discover through the exercise of reasonable care.  Additionally, the property owner owes its business invitees a duty of ordinary care to maintain the premises in a reasonably safe condition.

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As a general rule, a plaintiff may recover the full amount of compensatory damages even if the plaintiff has received payments from sources other than the tortfeasor.  Evidence of those collateral source payments is generally not admissible. Therefore, this rule, known as the “collateral source rule,” relates to both damages and evidence.  In Florida Physician’s Insurance Reciprocal v. Stanley, the Florida Supreme Court held that evidence of governmental or charitable benefits that are available to all citizens without consideration of wealth or status is admissible for the purpose of determining the reasonable costs of future medical expenses.  The Florida Supreme Court found that the collateral source rule was not applicable when the plaintiff had not incurred any expense, obligation, or liability.

file7101264630167The Florida Supreme Court has subsequently held that evidence of future benefits from Medicaid and Medicare is not admissible because Medicaid and Medicare have a right to reimbursement from a tort recovery.  Furthermore, the Supreme Court pointed out that the availability of those benefits in the future was speculative.

The Fourth District recently applied the collateral source rule in a tragic case arising from the death of a child in Go v. Normil.  The child was taken to the hospital for vomiting, high fever, and a stiff neck.  He was treated there by the appellant and another doctor for two weeks.  He was then transferred to a children’s hospital.  The doctors at the children’s hospital found that the child had had a stroke, and tests showed the presence of herpes and Epstein-Barr virus.

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In negligence cases arising from automobile accidents, whether a party received a traffic citation related to the accident is generally inadmissible.  Courts do not want the jury to substitute the officer’s decisions to write or not write a citation for the jury’s own determination as to the negligence of the parties.  If such evidence is presented to the jury, it may lead to a mistrial or a reversal on appeal.

file0001047958234The Second District recently held that this evidentiary rule also applies to incidents on the water in the case of Soto v. McCulley Marine Services, Inc. The defendants were hired by the county to help build artificial reefs in the Gulf of Mexico.  The project required the transport of materials by barge.  Over the July Fourth holiday weekend, the captain moored the tugboat and the barge by the dock in the staging area created by the county.  This staging area was located adjacent to a beach and a park, which were heavily used by the public, especially people on personal watercraft.  The area had a reputation for strong tidal currents.  The tugboat and the barge were each about 65 feet long, and they jutted out into the pass.

On the day of the incident, the victim had been on a jet ski near the barge and tugboat when the jet ski stalled.  The victim was unable to restart it.  The currents were allegedly strong that day, and the victim became separated from the jet ski.  He was later found under the barge.  He had drowned, despite the fact he was still wearing his life jacket.

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The Florida Legislature has codified the Daubert standard for expert testimony in § 90.702, Fla. Stat. Pursuant to the statute, a qualified expert may provide opinion testimony regarding scientific, technical, or specialized knowledge that will assist the trier of fact in determining a fact at issue or understanding evidence if the testimony is based on sufficient facts and data and is the product of reliable principles and methods. Additionally, the expert witness must have reliably applied the principles and methods to the facts. The trial court therefore evaluates the qualifications of the proposed expert and ensures the testimony is relevant and based on a reliable foundation.

file000425772961.jpgThe First District recently considered whether the expert testimony of an emergency department physician as to the standard of care and the actions of emergency personnel responding to a 911 call was properly excluded in Baan v. Columbia County.

This tragic case arose from the death of an 11-month-old child. EMS responded to a call that the child was in respiratory distress. The child’s aunt sought the help of a neighbor because the boy was having trouble breathing. That neighbor said she held the child during the whole time EMS was present during the first visit. She also stated that EMS did not perform an exam or even touch the child on the first visit, but she had previously stated that a first responder had held a stethoscope to the child’s back.
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Florida law requires special procedures in medical malpractice cases. Not all injuries caused by a health care provider are necessarily the result of medical malpractice, however. Because of the different procedures required in medical malpractice cases, it is important to determine if a particular case is the result of medical malpractice or ordinary negligence early in the process.

keys-1469103-639x413.jpgThe First District recently considered the distinction in the case of Shands Teaching Hospital and Clinics, Inc., d/b/a Shands Vista v. Estate of Ashley Lawson. The defendant in this case is a psychiatric hospital. The deceased woman had been a patient in a locked psychiatric unit in the hospital. After having been in the hospital for more than two months, the woman had taken an employee’s keys and badge and escaped. She was struck and killed by a truck on a nearby highway. Her estate later filed suit against the hospital, alleging ordinary negligence. The hospital moved to dismiss on the grounds that the allegations were actually medical negligence and that the plaintiff had filed to comply with the mandatory presuit requirements for medical malpractice cases.

The trial court denied the motion to dismiss, finding that the claim was for ordinary negligence because the complaint alleged the woman was not receiving care or services at the time of the breach. The defendant petitioned for a writ of certiorari.
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Generally, a product liability case in Florida must be brought within four years from the time that the facts giving rise to the cause of action were discovered or should have been discovered through due diligence. Section 95.031, Florida Statutes. To prevent product manufacturers, sellers, and distributors from being liable for their products for perpetuity, the Florida legislature passed a statute of repose for product liability cases. The statute of repose provides that a person may not file an action based on product liability more than twelve (12) years after the delivery of the product to its first purchaser or lessee who was not engaged in the business of selling the product, leasing the product, or using the product as a component part to manufacture another product. This statute of repose only applies to products with an expected useful life of ten (10) years or less, but all products other than those specifically excepted in the statute are conclusively presumed to have a useful life of ten (10) years or less. The exceptions include “improvement to real property, including elevators and escalators.”

water-1180466-640x480.jpgWhat does and does not constitute an improvement to real property is a common issue. The Third District recently considered whether a pool filter was an improvement to real property in the case of Dominguez v. Hayward Industries, Inc. The case arose when a swimming pool filter exploded, and a man suffered a severe head injury. The pool and filter had been installed on December 20, 1999, and the injury occurred on November 17, 2012.

The man and his wife sued the filter manufacturer and distributor, the installer and intermediate distributor, and the certified pool contractor. The couple sued the manufacturer and distributor and installer and intermediate distributor in strict liability. They sued the contractor for negligence. Additionally, there was a count for loss of consortium.
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Unfortunately, in many personal injury cases, the defendant has possession or control of much of the evidence that would prove the plaintiff’s case. In premises liability cases, plaintiffs often have to rely on discovery to obtain information and evidence to prove the defendant was negligent. Sometimes, however, evidence that would be beneficial to the plaintiff is protected from discovery by the work product doctrine.

at-the-docks-1533124-639x426.jpgThe Third District considered the application of the work product doctrine to photographs taken after an accident in the recent case of Seaboard Marine Ltd. v. Clark. In this case, an employee of a stevedoring company was injured when a top loader ran over him.

The injured man filed suit against the county that owns the terminal and the company that leases it from the county and operates it. The plaintiff alleged that noise, congestion, inadequate lighting, and disorganized storage of containers at the terminal created a dangerous work environment.
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When parents leave their children with a daycare, they expect the employees to take care of their children and keep them safe. Sadly, children are sometimes injured or killed while in the care of a babysitter or daycare. If a child’s injuries are caused by the negligence of a babysitter or daycare, the child or parents may be able to recover for the loss.

lonely-playground-1557033-1279x959.jpgA recent Third District case considered whether an insurer who issued a personal automobile policy was liable for a child’s death in a vehicle belonging to a daycare. In Bryant v. Windhaven Insurance Company, an infant tragically died after being left in a daycare’s van for more than seven hours in the summer.

The estate sued the daycare, the daycare’s landlord, and the driver of the van. The driver then sought defense and coverage from his personal automobile insurance policy, even though the death occurred in the daycare’s van. His insurer provided the defense under a reservation of rights, meaning that it reserved its right to later deny coverage. The insurer then filed a declaratory action claiming that the policy did not provide coverage for the child’s death.
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