South Florida Injury Law Blog

A property owner is generally responsible for keeping the property in a reasonably safe condition, especially for invited guests such as customers. When an invitee is injured on another person's property, Florida courts will typically consider whether the owner knew or should have known that the property was in a dangerous condition and whether the owner properly warned the invitee of any danger. In Dampier v. Morgan Tire & Auto, LLC, Florida's Fifth District Court of Appeal explains that certain conditions, however, are so "open and obvious" that the owner will not be held liable for injuries that result because of them.

Plaintiff Dandal Dampier was injured while at Morgan Tire & Auto (owned by Defendant Tires Plus) for an oil change. Specifically, Plaintiff "tripped on a stump" in a raised planting bed connecting the premises with a public sidewalk "and fell headlong into the parking lot, resulting in various injuries," according to the court. He sued Defendant for negligence, asserting that it failed to properly maintain the walkway and to warn of its dangerous condition. The trial judge granted Defendant's motion for summary judgment, finding that Defendant was not liable for Plaintiff's injuries because the stump over which Plaintiff fell "is so open and obvious as to not constitute a dangerous condition as a matter of law."

In affirming the trial court's decision, the Fifth District stated that "a property owner owes two duties to an invitee: (1) the duty to use reasonable care in maintaining the property in a reasonably safe condition; and (2) the duty to warn of latent or concealed dangers which are or should be known to the owner and which are unknown to the invitee and cannot be discovered through the exercise of due care." While the property owner has no duty to warn an invitee about "open and obvious" dangers, it nevertheless retains the duty to repair such conditions unless the condition is "so obvious and not inherently dangerous that they can be said... not to constitute a dangerous condition."

Citing its 1987 decision in K.G. v. Winter Springs Cmty. Evangelical Congregational Church, the court noted that landscaping features are typically not considered to create a dangerous condition invoking a property owner's duties to invitees. Similarly, the court concluded that the stump at issue in this case did not constitute a dangerous condition creating liability for failure to maintain the premises in a safe condition or warn invitees of the danger associated with walking the planting bed. As a result, Defendant was not liable for any injuries sustained by Plaintiff in the fall.

Continue reading "Florida Court on Accident Injuries and the "Open and Obvious" Requirement - Dampier v. Morgan Tire & Auto, LLC" »

One of a score of ongoing Florida personal injury cases against cigarette makers won't be reviewed by the nation's highest court.

The U.S. Supreme Court rejected a request by R.J. Reynolds Tobacco Co. to hear its appeal of a $28.3 million jury verdict in a lawsuit against the company by the family of a smoker who died from lung cancer.

Benny Martin, formerly of Pensacola, died in 1995 following a bout with lung cancer allegedly caused by smoking R.J. Reynolds' Lucky Strike cigarettes for decades. Following a 2009 state court trial, a jury ordered the company to pay more than $3.3 million in compensatory damages as well as a $25 million punitive damages award to Martin's wife. It found that although Mr. Martin was partially at fault for his death, the majority of the blame rested with the Winston-Salem, North Carolina tobacco company.

According to Reuters, "[t]he lawsuit stemmed from the so-called "Engle progeny" cases filed against tobacco companies by sick Florida smokers or their relatives. A class-action lawsuit filed in 1994 by...the late Dr. Howard Engle, produced a $145 billion judgment against cigarette makers six years later." Although the state supreme court ultimately overturned the ruling, finding that a class action was inappropriate, it allowed the various plaintiffs to file individual lawsuits against the tobacco companies. The court also upheld the jury's conclusions that nicotine is addictive, smoking can cause disease such as lung cancer and tobacco giants like R. J. Reynolds attempted to hide this information from consumers.

Reynolds appealed the jury award in the Martin case, arguing that the trial court had prohibited the company from arguing certain points although they had not been covered in the Engle case. Specifically, the Associated Press reports, "R.J. Reynolds lawyers argued that the case should be overturned because Florida judges aren't making plaintiffs prove cigarette makers knowingly sold dangerous and defective products. People suing cigarette companies only have to prove addiction, and that their illnesses, or deaths of family members, were caused by cigarettes."

Continue reading "High Court Declines to Review Florida Cigarette Verdict" »

With its beautiful beaches and welcoming climate, Florida attracts a wide array of visitors each year. It also attracts scores of companies from elsewhere in the U.S. and around the world looking to do business in the Sunshine State. In Kitroser v. Hurt, the Florida Supreme Court explains the rules for suing an employee of such a company whose negligence causes injury.

According to the court, Rhina Castro Lara was killed when Dale Dickey, an Airgas Carbonic, Inc. (Airgas) employee, "negligently operated a commercial truck which struck her automobile on Highway 27 south of Lake Okeechobee in Palm Beach County." Plaintiffs, as personal representative of the estate of the deceased and other individuals, filed an action against Airgas, Dickey and five other Airgas employees. Airgas is a foreign company. The employee defendants trained and/or supervised Dickey in Florida. Plaintiffs asserted that the employees were personally responsible for the accident because they knew or should have known that he was a careless driver.

The trial court ruled that it had personal jurisdiction over the employee defendants under Florida's long-arm statute - section 48.193, Florida Statutes (2011) - which provides that any person who personally or through an agent operates, conducts or carries on a business in Florida or commits a tortious act within the state is subject to state court jurisdiction. The Fourth District Court of Appeal, however, reversed the decision. In so doing, it certified the following question for the state supreme court:

Where an individual, non-resident defendant commits negligent acts in Florida on behalf of his corporate employer, does the corporate shield doctrine operate as a bar to personal jurisdiction in Florida over the individual defendant?

In answering this question, the supreme court explained that Florida's corporate shield doctrine "provides that acts performed by a person exclusively in his corporate capacity not in Florida but in a foreign state may not form the predicate for the exercise of personal jurisdiction over the employee in the forum state." The idea behind the doctrine, according to the court, is that "it may be unfair to force an individual to defend an action filed against him personally in a forum with which his only relevant contacts are acts performed totally outside the forum state and not for his own benefit but for the exclusive benefit of his employer."

Pursuant to this doctrine, the court ruled in Doe v. Thompson that a corporate executive who lived and worked in another state could not be haled into a Florida court to defend a negligence claim by a clerk who was sexually assaulted at a local convenience store owned by the executive's company. In the present case, however, Plaintiffs allege that the employee defendants engaged in negligent behavior - the training and/or supervision of Dickey - while physically present in Florida. As a result, the court held that the employees were not protected by the corporate shield doctrine and were subject to the trial court's jurisdiction under the long-arm statute.

Continue reading "Florida Supreme Court: Out of State Company Employees Can be Sued for Negligence in Florida - Kitroser v. Hurt" »

In Murray v. Traxxas Corp., the Second District Court of Appeal explains that a plaintiff in a Florida products liability action can still prove his or her case even when the product at issue is not available for inspection.

Plaintiffs' eleven year old son suffered severe burns when a Top Fuel can exploded as he and his brother tried to start a fire to roast marshmallows. The fuel can, taken from a shed on the boys' grandparents property, was originally purchased by their uncle for use in a remote controlled model car. Plaintiffs sued Defendants - the companies that designed, produced and sold Top Fuel - asserting that the can's negligent design caused their son's injuries. Specifically, the Murrays claim that the can should have been equipped with a "fuel arrestor" in order to prevent the flame-thrower or flashback effect which resulted in the explosion.

A circuit court granted Defendants' motion for summary judgment based largely on the fact that Plaintiffs had disposed of the Top Fuel can before filing the suit. As a result, the parties could not run tests on the fuel to determine its condition - nor that of the can itself - at the time of the accident. "Without the can... there's no proof of [P]laintiffs' theory of liability, that this can had a flame-thrower or flashback effect," the circuit court ruled.

On appeal, the Second District reversed the summary judgment ruling, finding that both parties can conduct experiments on similar Top Fuel cans in order to determine whether the one at issue in this case was negligently designed. The court explained that "[t]o prove their action based on negligent design, the Murrays must show that the defendants owed them a duty, that the defendants breached the duty, that the breach was the proximate cause of Brandon's injuries."

The condition of both the can and the fuel inside it at the time of the accident relate to the issue of whether Defendants breached a duty to the Murrays via negligence. The court found that the Murrays presented enough circumstantial evidence to indicate that the can contained the original fuel at the time of the accident. Specifically, according to the court, the boys' uncle "testified that he placed the partially used can of Top Fuel on a shelf in the shed about two years before the accident and that he never used the fuel. Defendants did not present any evidence to counter this testimony. Additionally, because the Murrays' negligent design claim is based on the undisputed fact that Top Fuel cans were not equipped with fuel arrestors, the court found the fact that the can was not available for inspection did not prevent the Murrays from proving their case. As a result, the court remanded the action to the circuit court for further proceedings.

Continue reading "Florida Court Allows Products Liability Case to Proceed without the Product - Murray v. Traxxas Corp." »