Proving Gross Negligence in Florida Worksite Accidents - Vallejos v. Lan Cargo S.A.

September 26, 2013,

Injuries at work happen. When they do, there are often a number of different parties that may be responsible. The Fourth District Court of Appeals explains the circumstances under which a third-party may be sued for a worksite accident in Vallejos v. Lan Cargo S.A.

forklift-321574-m.jpgMr. Vallejos was injured in an accident while working as a forklift operator in a warehouse at Miami International Airport. Vallejos was employed at the time by Professional Aviation Management, a subcontractor that supplied personnel to general contractor Lan Cargo, S.A., which owns the warehouse. Infinity Cargo Services also supplied workers at the warehouse under a separate contract with Lan Cargo.

Pablo Robaina, an Infinity employee, asked Vallejos to move a small dumpster called a "hopper" and dump it in a larger dumpster. Vallejos did not usually perform this job and Robaina didn't have the necessary security clearance to go to the area where the larger dumpster was stored. "Robaina showed Vallejos how to dump the hopper using a makeshift rope that allowed the operator to dump the hopper from the cab of the forklift so that the operator did not have to exit the forklift," the Court explained. "The rope did not come attached to the hopper but was added later by employees at the warehouse."

While dumping the hopper, the rope was caught in one of the forklift's wheels and Vallejos was thrown from his seat. He'd had the rope wrapped around his hand and wound up injuring it so seriously that four fingers had to be amputated. Vallejos also suffered psychological injury as a result of the accident and was unable to return to work.

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Court Sides Against Insurance Company in Florida Dog Bite Case - Maddox v. Florida Farm Bureau General

September 18, 2013,

For a person injured in an accident, the road to legal recovery often involves battling an insurance company. In Maddox v. Florida Farm Bureau General, Florida's Fifth District Court of Appeals considered a common issue in insurance related cases: how to interpret a policy's "single occurrence" provision.

the-dog-of-my-brother-2-261575-m.jpgMaddox and her son were injured in a dog bite attack at her boyfriend's home where Maddox and her two kids were living. Maddox's boyfriend owned two dogs at the time, Sugar and Dixie. On the day in question, Maddox said she was dressing one son when she heard the other scream. Rushing to the spare bedroom, she found Dixie biting her son's face. She attempted to get Dixie to break her grip and was also bitten in the process.

Florida Farm Bureau General, the boyfriend's home insurer, paid $100,000 to Maddox for her child's injury under the insured's personal liability coverage. Maddox filed a complaint against her boyfriend for her individual injuries. FFBG later filed a separate complaint asking a trial court for a declaratory judgment, ruling that the company was not liable for any damages from the biting incident under the home insurance policy.

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Court OKs Negligence Claim in Florida Golf Cart Accident - Seale v. Ocean Reef Club

September 12, 2013,

In Seale v. Ocean Reef Club, the U.S. District Court for the Southern District of Florida explains the basic elements of Florida negligence law as it applies to an unfortunate bicycle-golf cart accident.

the-villages-fl-usa-739164-m.jpgMr. Seale while riding his bicycle at the Ocean Reef Club in Key Largo in January 2011 when he was struck by a golf cart driven by a 12-year-old girl. Seale, a part time resident of the Club, later sued Ocean Reef, the Club's community association (OCRA) and the girl's father (Mr. Clark) for negligence, among other claims. He alleged that Clark's daughter had been issued a license by the OCRA to drive golf carts on the property and was operating a cart loaned to her by the club at the time of the accident. According to Williams, the girl caused the accident by driving carelessly and failed to pay attention to the road, exceeded proper speeds and neglected to brake appropriately.

Denying OCRA's motion to dismiss the negligence claims against it, the District Court said that Seale sufficiently alleged plausible claims. In order to prove a negligence claim in Florida, an injured person must show that the party being sued (defendant) owed him or her a "duty of reasonable care" which the defendant breached and that the breach was the "actual and proximate cause" of the person's injury. "Where a defendant's conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses," the court explained.

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Evidence, Discovery in Florida Slip and Fall Cases - Publix Supermarkets v. Santos

September 5, 2013,

leave-your-mark-624821-m.jpgIn order to win a Florida slip and fall case, you generally need to present evidence showing that you were injured and that the injury was caused by negligence by the person or entity you are suing. While this evidence is often provided by the injured person or third parties such as doctors, hospitals, financial service providers and police officers, it can also come from the defendant in any case. Discovery is the term for the pre-trial process through which parties to a lawsuit can obtain a wide range of evidence and information from an opponent.

The breadth and depth of discovery is not endless, however, as Florida's Third District Court of Appeals recently pointed out in Publix Supermarkets v. Santos.

Ms. Santos was allegedly injured in a slip and fall accident at a Publix Supermarket in Miami. According to Santos, the accident happened near a kiosk where she slipped on "old wet spinach or some other transitory substance" on the floor and was injured as a result of the fall. She later sued Publix, alleging two counts of negligence and claiming that the kiosk - used to conduct in-store cooking demonstrations - created a dangerous condition at the store.

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Florida Negligence 101 - Stilson v. Valley Fine Foods

August 29, 2013,

blackboard-1217934-m.jpgAlthough negligence is one of the most commonly alleged claims in personal injury actions, it is also often misunderstood or mischaracterized by those who are unfamiliar with this area of the law. Many people use the words "negligence" or "negligent" in everyday conversation to convey a sense of carelessness. In the courtroom, however, the terms have a very specific meaning.

There are several components to a negligence claim, each of which must be proved in order for the person suing to successfully recover any damages caused by the alleged negligence. The U.S. District Court for the Middle District of Florida recently explained the basics of state negligence law in Stilson v. Valley Fine Foods.

Mr. Stilson sued Buona Vita Inc., Wal-Mart Stores, East and Valley Fine Foods, alleging that he became extremely sick and was hospitalized after eating a Five Cheese-Filled Rigatoni with Meatballs meal made and distributed by Buona Vita and sold at a Sam's Club store owned by Wal-Mart. He claimed in particular that Buona Vita was negligent because the company knew or should have been aware that the meal had not been inspected for consumption before it was shipped to Sam's Club.

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Court Explains Duty of Care in Florida Cruise Accident Cases - Carroll v. Carnival Corp.

August 22, 2013,

Florida negligence cases often center around the question of whether the person or company being sued failed to satisfy the duty of care - if any - owed to an injured party under the circumstances. In Carroll v. Carnival Corp., the U.S. District Court for the Southern District of Florida explains that the extent of the duty owed depends on the specific facts of the case.

to-do-1151807-m.jpgMs. Carroll was injured in two separate accidents while a passenger aboard the Carnival "Miracle" during her first ever cruise. Carroll broker her elbow when she slipped and fell in one of the ship's elevators and broke her femur two days later in a second slip and fall accident in a cabin bathroom. She sued Carnival for two counts of negligence in federal district court, alleging that the duty of care owed to her by the company increased following the first accident.

As the court explained, Carroll acknowledged that she was under no special restrictions after the first accident. She was treated for the elbow injury by a doctor in Nassau while the ship was in port and had her arm placed in a sling, but was not told to wear certain clothes, walk a certain way or refrain from any particular activity. Carroll did not request help from the ship's staff in getting around the boat, according to the court, and suffered the second injury after having trouble with her pants while in the bathroom.

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Florida Court Halts $2.4 Million Nursing Home Death Verdict, Citing Juror Dishonesty - Hillsboro Management v. Pagono

August 16, 2013,

In Hillsboro Management v. Pagono, Florida's Fourth District Court of Appeals explains that honesty isn't just the best policy for the parties in a personal injury lawsuit, but also for the jurors being considered to weigh in on any particular case.

green-room-156461-m.jpgMs. Tremblay was 98 years old when she was admitted to Living Legends Retirement Center in Deerfield Beach. Although an admission chart indicated that she did not need help walking or standing, Tremblay fell several times shortly after moving to the center. According to the court, Tremblay fell a total of 19 times over the course of 26 days she was at Living Legends. She suffered a number of serious injuries as a result, but the court said the evidence was unclear as to whether these injuries actually caused her death on the 26th day.

Tremblay's granddaughter, Ms. Pagono, sued Living Legends' owner (Hillsboro Management) for negligence. She said that the company failed to properly supervise Tremblay and presented evidence at trial of a number of instances in which staff failed to report Tremblay's condition and did not supervise her, despite knowing she was at risk of falling. A jury later returned a verdict in Pagono's favor, awarding her more than $145,000 in past medical expenses, $750,000 in non-economic damages and punitive damages in the amount of $1.5 million.

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Negligence and Obvious Danger in Florida Personal Injury Cases - Rodriguez v. Akal Security

August 7, 2013,

In Rodriguez v. Akal Security, a federal court in Florida explains that while state negligence law imposes a duty to warn others about dangerous situations in certain circumstances, it does not impose such a duty where the danger is obvious.

1390010_exercise.jpgPedro Rodriguez was injured in an accident while using gym equipment at the Krome Service Processing Center in Miami, where he was being held as an inmate after entering the country illegally from Mexico. He had previously been deported to his home country and was detained at Krome after being picked up by police in Indian River County.

Akal Security, Inc. provided security at the detention center under a contract with the federal government. Two Akal employees were on duty at the gym when Rodriguez was injured after misusing a ProMaxima Hip and Dip Combo apparatus. One side of the ProMaxima is for "dip" exercises in which a user grips handle bars more than four-and-a-half feet above the ground and lowers and raises himself by bending at the elbows. The other side is designed for "chin up" exercises, in which the user hangs from handle bars perched more than 7-and-a-half feet above the ground and pulls himself up so that his chin reaches the bars. The chin up side also includes stairs to allow users to reach the handle bars.

Rodriguez claimed that he was not able to reach the chin up handle bars, however, even by using the stairs. So, on the day of the accident, he approached the dip side of the ProMaxima and hoisted himself up so that his feet were on the handle bars. Rodriguez then attempted to climb over the top of the machine in order to use the chin up side. He fell from the ProMaxima in the process and was injured. Rodriguez claimed that one of the Akal employees on duty saw him climbing the machine and did not intervene, instead yelling "superman" before Rodriguez fell to the floor.

Rodriguez later sued Akal for negligence, alleging that its employees should have warned him that climbing the ProMaxima was dangerous. He asserted that he had never seen anyone else use the apparatus before the accident and did not realize that he was using it improperly.

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Federal Court Orders Boat Inspection in Accident Case - Stephens v. Florida Marine Transporters

July 29, 2013,

If you've been injured on a boat, it makes sense that you (and your lawyer) would want to take a look at the vessel prior to going to trial in a case related to the accident. In Stephens v. Florida Marine Transporters, the U.S. District Court for the Eastern District of Louisiana explains that a company whose deckhand was allegedly injured on one of its boats has to make the vessel available for inspection.

1325791_boat_bumper.jpgStephens was injured in an accident while working as a deckhand and crewmember on the M/V CHRIS PIKE. He was injured while attempting to replace two defective ram cylinders on the vessel, each of which weigh roughly 500 or 600 lbs. The cylinders were difficult to handle, according to Stephens, because they did not contain hand-holds. He began complaining of a pulled muscle in his back while finishing the job and said that the pain increased later that night. The back injury eventually required surgery. Stephens sued his employer, Florida Marine Transporters, alleging that the company was negligent and responsible for the injury.

Following a discovery dispute, Stephens filed a motion under Federal Rule of Civil Procedure 26(b)(1) asking that the company be required to make the CHRIS PIKE available for inspection. He argued that he should be entitled to inspect the boat because that is where he performed the cylinder replacement tasks that allegedly caused his injury.

Meanwhile, Florida Marine argued that inspection was improper because Stephens did not actually suffer an injury aboard the boat. Instead, the back injury was "a mere manifestation of symptoms which occurred in the service of the vessel," according to the company. Indeed, the company claimed that Stephens did not mention any injury until four days later and at that point complained only of a groin problem. When he was questioned at a hearing, Stephens did not identify a certain point in the cylinder replacement process in which he began to feel pain or injury, according to the company.

The District Court sided with Stephens, finding that questions during a previous hearing "do not unambiguously resolve the issue of whether he actually experienced pain during the process of removing the ram cylinders from the CHRIS PIKE. Specifically, the court said some of these questions asked Stephens whether he "remembered" experiencing any pain during certain aspects of the cylinder replacement, including removing and later re-installing a metal grate. Stephens was not asked whether he actually experienced any pain, according to the court. "Whether Stephens sustained an injury during the grate removal and re-installation process clearly remains at issue," the court explained. "There is a palpable distinction between admitting that pain was actually 'felt' or 'experienced,' and merely 'remembering' that paid had been felt.

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Court Says Florida Medical Device Negligence Claim Pre-empted by Federal Law - McClelland v. Medtronic

July 16, 2013,

In McClelland v. Medtronic, the U.S. District Court for the Middle District of Florida explains some of the legal hurdles facing a person looking to sue a medical device maker for negligence.

724725_massive_column.jpgThe case surrounded the tragic death of B. McClelland in August 2011 as a result of heart failure. McClelland had complained of recurrent heart palpitations prior to this time and was driving to the hospital when she passed away. Later tests showed that an EnPulse pacemaker Model E1DR21 implanted in her had failed due to certain deficiencies. Product manufacturer Medtronic issued a recall of the pacemakers more than one year later and released a software update to reprogram the defective devices that were recalled.

McClelland's mother, as representative of her estate, sued Medtronic for negligence. She alleged that the company had a duty to notify McClelland and the Food and Drug Administration about defects in the E1DR21 that could lead to serious injury or death and that it failed to do so. According to the suit, the product would have been recalled earlier - before McClelland's death - had the company reported the defects in a timely manner.

Dismissing the complaint, the Middle District held that the negligence claim was pre-empted under the federal Medical Device Act (MDA). The MDA, according to the court, amended the Food, Drug, and Cosmetic Act's regulation of medical devices entering the market and "imposed a regime of detailed federal oversight." The law specifically pre-empts any state regulations that are different from or in addition to the federal regulations that apply to a certain device. Nevertheless, the U.S. Supreme Court clarified in Riegel v. Medtronic in 2008 that state law claims based on the alleged violations of regulations that "parallel," but do not add to the relevant federal requirements are not pre-empted.

Here, the court said the claim that Medtronic breached a duty owed to McClelland by failing to adequately warn her about dangers associated with the product, if allowed to go forward, "would impose requirements different or in addition to those in place under the MDA. "The MDA and its implementing regulations set forth a comprehensive scheme under which a device manufacturer must submit reports to the FDA regarding incidents where the device may have contributed to a death or serious injury," the court explained. That scheme does not, however, require the manufacturer to inform patients about such incidents.

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Florida "Undertaker Doctrine" at Issue in Wrongful Death Case - Sullivan v. Bottling Group LLC

July 9, 2013,

In Sullivan v. Bottling Group LLC, the U.S. District Court for the Middle District of Florida explains the "undertaker's doctrine" and how it applies in Florida negligence and wrongful death cases.

315057_wall_2.jpgMr. Sullivan, an employee of Westphalia Technology, was killed in an accident at a Pepsi plant in Tampa. Pepsi had hired the company to repair a vertical lift system used for retrieving stored goods. Sullivan was crushed by the VLS and died of blunt force trauma. Ms. Sullivan, a personal representative for Mr. Sullivan, sued Pepsi and Scott Gorenc, who worked for the company, for wrongful death in state court. She claimed that the company negligently maintained and installed the safety brackets used to secure the VLS.

Pepsi removed the case to federal district court, where it filed a motion to strike the claims against Gorenc, alleging that Sullivan added him as a defendant fraudulently. Specifically, the company claimed that Sullivan included the claims against Gorenc in order to avoid having the case removed to federal court. 28 U.S.C. ยง 1441(b)(2) precludes removal where any defendant is a citizen of the state in which an action is filed. Meanwhile, Sullivan argued that Gorenc could be held liable based on Florida's "undertaker's doctrine" because he was involved in repairing the VLS.

The District Court agreed. "When a defendant alleges fraudulent joinder, that defendant bears the heavy burden of establishing by clear and convincing evidence that there is no possibility the plaintiff can establish a cause of action against the resident defendant," the court explained, citing Henderson v. Washington National Insurance, a 2006 decision by the U.S. Court of Appeals for the Eleventh Circuit. The court further advised that a plaintiff need not have a "winning case" in order to avoid fraudulent joinder, but merely one that possibly states a valid claim.

Florida law recognizes the undertaker doctrine in negligence cases, providing that a person who voluntarily undertakes to do an act that if not accomplished with due care might increase the risk of harm to others or might result in harm to others due to their reliance upon the undertaking is liable if he or she fails to take reasonable care.

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Florida Costa Concordia Case Sent Back to State Court - Scimone v. Carnival

July 2, 2013,

"This case begins with a shipwreck," the U.S. Court of Appeals for the 11th Circuit recently explained in Scimone v. Carnival, a cruise ship accident case in which the court had to make a tough decision about jurisdiction under the Class Action Fairness Act.

1343714_sunshine.jpgThe two lawsuits at issue stemmed from the 2012 sinking of the Costa Concordia, a cruise ship owned by Carnival that ran aground after striking rocks off the coast of Tuscany in Italy. A total of 23 people were killed in the accident and scores more were injured. Two groups of passengers - composed of 56 and 48 individuals respectively - filed actions against Carnival, alleging negligence and other tort claims.

Although the actions were originally filed in state court, the company removed both matters to a federal district court in Miami pursuant to CAFA. The law provides that a "mass action" - one involving 100 or more claimants and tried jointly - may be removed to federal court if it meets certain conditions. The plaintiffs later sought to remand the cases back to state court, after Carnival moved to have both actions dismissed, arguing that the matters did not qualify as a mass action.

The district court ruled that removal under CAFA was not appropriate because neither or the cases involved 100 or more plaintiffs. The 11th Circuit agreed on appeal. "Under the plain language of CAFA...the district court lacked subject-matter jurisdiction over the plaintiffs' two separate actions unless they proposed to try 100 or more persons' claims jointly," the court explained. While the two cases involved common fact issues, given that they both arose from the same accident, the court said that the two groups of plaintiffs could not be combined in order to reach the 100 mark.

The court further noted that neither the plaintiff groups nor the state court had indicated that the two cases should be combined and tried jointly. Thirty nine plaintiffs were originally party to one single action against the company. When another 65 sought to join the action - which would have brought the total plaintiff number to 104 - they voluntarily dismissed the complaint and split into two groups before filing separate complaints. "Neither group of plaintiffs ever moved the state court to consolidate those two separate lawsuits or hold a joint trial on any component (e.g., liability) of the two groups' claims," the court explained.

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Business Owner Shot by Police Can Proceed with Negligence Claims Against County - Rodriguez v. Miami-Dade County

June 26, 2013,

Suing a local, state or federal government can be a complicated matter that raises a number of particular legal issues, including sovereign immunity. Governments are generally immune from suit in many instances. In Florida, immunity extends to actions by police responding to "emergency" situations. The state's high court explains in Rodriguez v. Miami-Dade County, however, that the circumstances under which this immunity applies are very limited.

970702_police_line.jpgJose Rodriguez was shot by a Miami-Dade police officer Hernandez responding to a burglar alarm at the business that Rodriguez owned. According to Rodriguez, he drove to the business after being alerted to the alarm. When he arrived, he got out of his car with a gun and was shot four times by Hernandez. The officer allegedly did not give any warning before firing. Although a video camera recorded some of the incident, it did not record the shooting as both Rodriguez and Hernandez were out of the camera's view at the time.

Rodriguez sued the county, alleging two counts of negligence: one based on the wrongful shooting and the other for negligent retention and supervision of Officer Hernandez.

A trial court denied summary judgment for the county on the first count, but granted it on the second count. The trial court said it could not determine whether the county was entitled to sovereign immunity under the so-called "police emergency" exception. After granting the county's petition for writ of certiorari, Third District Court of Appeals found that the county was entitled to sovereign immunity because the shooting occurred during an emergency situation in which police officers were thrown into action by the acts of others and "were required to make split-second choices that could result in harm either way."

The Florida Supreme Court quashed the Third District's ruling on further appeal. The Court first held that the county's sovereign immunity defense could not be reviewed by appellate courts via a petition for writ of certiorari because there was no risk of irreparable harm to the county by the trial court's ruling and essential facts remained in dispute. The Court pointed out that the trial court's order was "non-final" in that the county was free to re-argue its sovereign immunity defense at trial and in later motions. As a result, the Court said certiorari review was not warranted in this case.

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Court Takes on Falling Palm Trees and Gross Negligence - Pyjek v. Valleycrest Landscape Development

June 20, 2013,

In Pyjek v. Valleycrest Landscape Development, Florida's Second District Court of Appeals explains the gross negligence requirement in cases in which an employee injured on the job sues a company other than his or her employer for damages.

1340042_palms_1.jpgMr. Pyjek was injured while working for a subcontractor fencing company on a residential development project in Fort Myers. He was cutting aluminum fence material when he was struck by a falling palm tree. Pyjek sued Valleycrest, another subcontractor responsible for planting palm trees at the project, for negligence.

A trial court ruled that Valleycrest was immune from suit under Florida's workers' compensation law, Section 440.10(1)(e)(2), Fla. Stat. (2007). The statute provides that contractors and subcontractors are immune from suit by an employee of another subcontractor for injuries sustained on a construction project, provided that: a) the employee's company has workers' compensation insurance for its own employees; and b) the injury was not caused by the other company's gross negligence.

On appeal, however, the court said triable issues remained to be resolved as to whether Valleycrest was grossly negligent in its planting of trees. "These were no mere shrubs," the court observed. "The palm trees were approximately eighteen to thirty feet tall." Equally large were the factual disputes remaining to be resolved, according to the Court.

In particular, Pyjek argued that the same tree that struck him had fallen earlier the same day after a gust of wind. The tree fell again shortly after the company's workers replanted it, according to Pyjeck. Knowing that the tree had just been knocked over and that conditions were windy, Pyjek claimed that the company should have dug deeper holes in replanting it and used additional supports in restaking it. Indeed, Pyjek's expert testified that Valleycrest should have taken additional precaution knowing that the tree had already fallen once.

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High Court Says Wife of Husband Who Died After Suit Can Claim Wrongful Death - Capone v. Philip Morris

June 13, 2013,

A personal injury lawsuit typically concerns a person who suffers some sort of non-fatal injury in an accident or other incident, while a wrongful death action centers around claims on behalf of a person who ultimately dies. So what happens when a person files a personal injury action and then later dies as a result of those injuries? The Florida Supreme Court addressed the issue in Capone v. Philip Morris.

1191091_sunset_on_beach.jpgMr. and Mrs. Capone sued Philip Morris and other cigarette companies under theories of negligence, strict liability and fraud, claiming that their products caused Mr. Capone's lung cancer along with other cardiovascular maladies. Mr. Capone later died while the matter was pending, and his wife sought to amend the complaint to substitute herself as the plaintiff and allege an additional claim for wrongful death. After protracted litigation, a trial court denied the motions to amend and substitute. The Third District Court of Appeals affirmed the decision, finding that Mr. Capone's personal injury suit was automatically extinguished by virtue of his death and therefore could not be amended.

The Florida Supreme Court reversed the decision on appeal, however. "At issue in this case is the interplay between two different causes of action under the Florida Statutes: the survival action statute, section 46.021, Florida Statutes (2008), and the Florida Wrongful Death Act," the court explained. The survival statute provides that "no cause of action dies with the person." The Wrongful Death Act, on the other hand, states "[w]hen a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate."

Reading both laws together, the court found that Ms. Capone was not required to file a new, separate wrongful death action against Philip Morris. "[T]he express intent of the [Wrongful Death] Act is to shift the losses of survivors to the wrongdoer," the court observed, noting that the statute indicates elsewhere that it is to be "liberally construed" in order to meet this intent. Thus, the court ruled, it would be counter to the purpose of the Act to allow a defendant to evade liability for injuries caused simply because the plaintiff had the misfortune of passing away after filing suit.

In other words, the court concluded that a personal injury claim does not "self-destruct like the secret message on a rerun of 'Mission Impossible,'" upon the plaintiff's death, quoting the Second District Court of Appeals' 2003 decision in Niemi v. Brown & Williamson Tobacco Corp.

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